EX-10.3






Exhibit
10.3

EXECUTION COUNTERPART




$300,000,000 CREDIT AGREEMENT




Dated as of December 21, 2006




Among




EBG HOLDINGS LLC




as  Borrower




and




THE INITIAL LENDERS HEREIN




as Initial Lenders




and




CREDIT SUISSE




as Administrative Agent




and

CREDIT SUISSE SECURITIES (USA) LLC AND

GOLDMAN SACHS CREDIT PARTNERS L.P.




as Co-Syndication Agent and as Co-Documentation Agent




and

CREDIT SUISSE SECURITIES (USA) LLC AND

GOLDMAN SACHS CREDIT PARTNERS L.P.




as Joint Lead Arrangers and as Joint Book Running Managers




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I

	 
	 	 	 	 	 	 
	DEFINITIONS AND ACCOUNTING TERMS

	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Certain Defined Terms
	 	 	2	 
	SECTION 1.02.

	 	Computation of Time Periods; Other Definitional Provisions
	 	 	29	 
	SECTION 1.03.

	 	Accounting Terms
	 	 	29	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	AMOUNTS AND TERMS OF THE LOANS

	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	The Loans
	 	 	29	 
	SECTION 2.02.

	 	Making the Loans
	 	 	29	 
	SECTION 2.03.

	 	[Reserved]
	 	 	30	 
	SECTION 2.04.

	 	Repayment of Loans
	 	 	30	 
	SECTION 2.05.

	 	Prepayments
	 	 	30	 
	SECTION 2.06.

	 	Application
	 	 	32	 
	SECTION 2.07.

	 	Interest
	 	 	33	 
	SECTION 2.08.

	 	Conversion of Loans
	 	 	34	 
	SECTION 2.09.

	 	Increased Costs, Etc.
	 	 	35	 
	SECTION 2.10.

	 	Payments and Computations
	 	 	36	 
	SECTION 2.11.

	 	Taxes
	 	 	37	 
	SECTION 2.12.

	 	Sharing of Payments, Etc.
	 	 	40	 
	SECTION 2.13.

	 	Use of Proceeds
	 	 	41	 
	SECTION 2.14.

	 	Change of Control Prepayment
	 	 	41	 
	SECTION 2.15.

	 	Evidence of Debt
	 	 	42	 
	SECTION 2.16.

	 	Duty to Mitigate
	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	CONDITIONS TO EFFECTIVENESS AND OF LENDING

	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Conditions Precedent
	 	 	43	 
	SECTION 3.02.

	 	Determinations Under Section 3.01
	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Representations and Warranties
	 	 	47	 






 









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE V

	 
	 	 	 	 	 	 
	COVENANTS

	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Affirmative Covenants
	 	 	52	 
	SECTION 5.02.

	 	Negative Covenants
	 	 	53	 
	SECTION 5.03.

	 	Reporting Requirements
	 	 	57	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	EVENTS OF DEFAULT

	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Events of Default
	 	 	59	 
	SECTION 6.02.

	 	Action if Insolvency
	 	 	61	 
	SECTION 6.03.

	 	Action if Other Event of Default
	 	 	61	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 	 	 
	THE AGENTS

	 
	 	 	 	 	 	 
	SECTION 7.01.

	 	Authorization and Action
	 	 	62	 
	SECTION 7.02.

	 	Administrative Agent’s Reliance, Etc.
	 	 	63	 
	SECTION 7.03.

	 	Initial Banks and Affiliates
	 	 	63	 
	SECTION 7.04.

	 	Lender Credit Decision
	 	 	63	 
	SECTION 7.05.

	 	Indemnification
	 	 	64	 
	SECTION 7.06.

	 	Successor Administrative Agent
	 	 	64	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 	 	 
	SECTION 8.01.

	 	Amendments, Etc.
	 	 	65	 
	SECTION 8.02.

	 	Notices, Etc.
	 	 	66	 
	SECTION 8.03.

	 	No Waiver; Remedies
	 	 	68	 
	SECTION 8.04.

	 	Costs and Expenses
	 	 	68	 
	SECTION 8.05.

	 	Right of Set-off
	 	 	70	 
	SECTION 8.06.

	 	Binding Effect
	 	 	70	 
	SECTION 8.07.

	 	Assignments and Participations
	 	 	70	 
	SECTION 8.08.

	 	Execution in Counterparts
	 	 	74	 
	SECTION 8.09.

	 	Confidentiality
	 	 	74	 
	SECTION 8.10.

	 	Patriot Act Notice
	 	 	75	 
	SECTION 8.11.

	 	Jurisdiction, Etc.
	 	 	75	 
	SECTION 8.12.

	 	Governing Law
	 	 	75	 
	SECTION 8.13.

	 	Waiver of Jury Trial
	 	 	75	 






ii









 






SCHEDULES




	 	 	 	 	 
	Schedule I

	 	-
	 	Commitments and Applicable Lending Offices
	Schedule II

	 	-
	 	Make Whole Premium
	Schedule 4.01(b)

	 	-
	 	Subsidiaries
	Schedule 4.01(c)

	 	-
	 	Ownership Information
	Schedule 4.01(e)

	 	-
	 	Consents and Approvals
	Schedule 4.01(g)

	 	-
	 	Litigation
	Schedule 4.01(o)

	 	-
	 	Environmental Matters
	Schedule 4.01(p)

	 	-
	 	Existing Debt






EXHIBITS




	 	 	 	 	 
	Exhibit A

	 	-
	 	Form of Note
	Exhibit B

	 	-
	 	Form of Notice of Borrowing
	Exhibit C

	 	-
	 	Form of Assignment and Acceptance
	Exhibit D

	 	-
	 	Form of Solvency Certificate
	Exhibit E

	 	-
	 	Form of Annual Budget






iii









 






CREDIT AGREEMENT




          CREDIT AGREEMENT dated as of December 21, 2006 among EBG HOLDINGS LLC, a Delaware limited
liability company (the “Borrower”), the Lenders (as hereinafter defined), CREDIT SUISSE, CAYMAN
ISLANDS BRANCH (“CS”), as administrative agent (together with any successor administrative agent
appointed pursuant to Article VII, the “Administrative Agent”) for the Lenders, CREDIT
SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as co-syndication agents
(together with any successor co-syndication agents, the “Co-Syndication Agent”), CREDIT SUISSE
SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as co-documentation agents (together
with any successor co-documentation agents, the “Co-Documentation Agent”), CREDIT SUISSE SECURITIES
(USA) LLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as joint lead arrangers (together with any
successor joint lead arrangers, the “Joint Lead Arrangers”) and as joint lead book running managers
(together with any successor joint lead arrangers, the “Joint Book Running Managers”).




PRELIMINARY STATEMENTS:




          (1) The Borrower has requested that the Lenders provide a term loan facility to the Borrower
and make loans up to $300,000,000 to pay transaction fees and expenses and to fund in part the
Distribution and the Tender Offer (each as hereinafter defined) and to provide funds for other
general corporate purposes of the Borrower.




          (2) The Borrower has commenced the Tender Offer (as herein after defined) for up to
$925,000,000 of its Units (as hereinafter defined) to be financed in part with the proceeds of the
loans hereunder.




          (3) Simultaneously with the entering into of this Agreement, Boston Generating, LLC
(“BostonGen”) and the Guarantors named therein are entering into that certain (a) First Lien Credit
and Guarantee Agreement dated as of the date hereof (the “First Lien Credit Agreement”) with each
of the banks, financial institutions and other institutional lenders party thereto from time to
time (the “First Lien Lenders”), and CS, as administrative agent (the “First Lien Administrative
Agent”), and (b) Second Lien Credit and Guaranty Agreement, dated as of the date hereof (the
“Second Lien Credit Agreement”) with each of the banks, financial institutions and other
institutional lenders party thereto from time to time (the “Second Lien Lenders”), and CS, as
administrative agent (the “Second Lien Administrative Agent”), the proceeds of which shall be used
to (i) repay in full amounts outstanding under the Existing Credit Agreements, (ii) fund the
Distribution and the Tender Offer, (iii) provide working capital, and (iv) to pay transaction fees
and expenses (“Transaction Costs”).




          (4) The Borrower intends to make a pro rata distribution to its unit holders, prior to the
purchase of Units in the Tender Offer, in an amount of up to $40,000,000 to be financed in part
with the proceeds of the loans hereunder (the “Distribution”).




          (5) The Lenders have indicated their willingness to agree to make Loans (as hereinafter
defined), subject to the terms and conditions of this Agreement.




 









 








          NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
contained herein, the parties hereto hereby agree as follows:




ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




          SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):





     “Administrative Agent” has the meaning specified in the recital of parties to this
Agreement.




     “Administrative Agent’s Account” means the account of the Administrative Agent
specified by the Administrative Agent in writing to the Lenders from time to time.




     “Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a director or
officer of such Person. For purposes of this definition, the term “control” (including the
terms “controlling,” “controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote 15% or more of the Voting Interests of
such Person or to direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Interests, by contract or otherwise.




     “Agreement” means this Credit Agreement, as amended.




     “Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of a Base Rate Loan and such Lender’s Eurodollar Lending Office
in the case of a Eurodollar Rate Loan.




     “Applicable Margin” means 6.00% per annum for Base Rate Loans and 7.00% per annum for
Eurodollar Rate Loans.




     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.




     “Asset Sale” means any sale, lease, transfer or other disposition of any Property of
the Borrower or any of its Subsidiaries (other than (a) sales of (or the granting of any
option or other right to purchase, lease or otherwise acquire) power, natural gas, fuel,
capacity, gas or fuel transportation, power transportation or ancillary services or other
inventory in the ordinary course of such Person’s business including, without limitation,
Permitted Trading Activities, (b) the liquidation, sale or use of Cash and Cash Equivalents,
(c) sales, transfers or other dispositions of assets among BostonGen and its Subsidiaries,
(d) sales or discounts without recourse of accounts receivable arising in the



2









 







ordinary course of such Person’s business in connection with the compromise or
collection thereof, (e) dispositions required or contemplated by the Contractual Obligations
in existence as of the date hereof with or relating to Governmental Authorities and relating
to the Subsidiaries of BostonGen and (f) sales, transfers or other dispositions of Property
on an arm’s length basis for cash consideration in an aggregate amount not to exceed
$10,000,000 per calendar year).




     “Asset Sale Proceeds” means, with respect to any Asset Sale, the Net Cash Proceeds
payable to the Borrower or any of its Subsidiaries in connection with such Asset Sale.




     “Assignment and Acceptance” means an assignment and acceptance entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is required by
Section 8.07 or by the definition of “Eligible Assignee”), and accepted by the
Administrative Agent, in accordance with Section 8.07 and in substantially the form
of Exhibit C hereto or any other form approved by the Administrative Agent.




     “Auction Date” means the date of the consummation of the Tender Offer.




     “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
now and hereafter in effect, or any successor statute.




     “Base Case Projections” has the meaning specified in Section 3.01(a)(ix).




     “Base Rate” means a fluctuating interest rate per annum in effect from time to time,
which rate per annum shall at all times be equal to the higher of:




     (a) the rate of interest announced publicly by CS in New York, New York, from
time to time, as the prime rate; and




     (b) 1/2 of 1% per annum above the Federal Funds Rate.




     “Base Rate Loan” means any Loan that bears interest as provided in Section
2.07(a)(i).




     “Borrower” has the meaning specified in the recital of parties to this Agreement.




     “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type made by
the Lenders.




     “BostonGen” has the meaning specified in the preliminary statements to this Agreement.




     “BostonGen Facilities” means each of the First Lien Credit Agreement and the Second
Lien Credit Agreement.




     “BostonGen Repayment Event” means the date on which both (a) a Repayment Event (as
defined in the First Lien Credit Agreement) or any other similar event under



3









 







any Successor Facility (as defined below) has occurred on or prior to such date and (b)
a Repayment Event (as defined in the Second Lien Credit Agreement) or any other similar
event under any Successor Facility (as defined below) has occurred on or prior to such date;
provided that, any such Repayment Event or similar event shall not be deemed to have
occurred under any facility by reason of any extension, replacement or other refinancing of
such facility, in each case in an aggregate principal amount not to exceed the sum of the
principal amount being extended, replaced or refinanced, accrued interest thereon,
prepayment premiums (if any) and associated transaction fees and expenses (such extension,
replacement or refinancing, a “Successor Facility”).




     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Rate Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.




     “Call Premium” shall mean, with respect to any applicable prepayment under Section
2.05 or Section 2.14, an amount equal to (a) the Make Whole Premium on such
prepayment if such prepayment is made on or prior to the second anniversary of the Effective
Date, (b) 3.00% of the aggregate principal amount of such prepayment if such prepayment is
made after the second anniversary of the Effective Date but on or prior to the third
anniversary of the Effective Date, (c) 2.00% of the aggregate principal amount of such
prepayment if such prepayment is made after the third anniversary of the Effective Date but
on or prior to the fourth anniversary of the Effective Date or (d) 1.00% of the aggregate
principal amount of such prepayment if such prepayment is made after the fourth anniversary
of the Effective Date but on or prior to the fifth anniversary of the Effective Date. Any
commitment reduction or prepayment after the fifth anniversary of the Effective Date will
not be subject to the Call Premium.




     “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.




     “Cash” means money, currency or a credit balance in any demand account or deposit
account.




     “Cash Equivalents” means any of the following: (a) direct obligations of, or
obligations the principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case maturing within
one year from the date of acquisition thereof; (b) securities issued by any state of the
United States of America or any political subdivision of any such state or any public
instrumentality thereof or any political subdivision of any such state or any public
instrumentality thereof having maturities of not more than one year from the date of
acquisition thereof and, at the time of acquisition, having a rating of AA- or higher from
S&P or Aa3 or higher from Moody’s (or, if at any time neither S&P nor Moody’s shall be
rating such obligations, an equivalent rating from another nationally recognized rating
service); (c) investments in commercial paper maturing within 365 days from the date of



4









 







acquisition thereof and having, at such date of acquisition, a rating of at least A 1
or P 1 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be
rating such obligations, an equivalent rating from another nationally recognized rating
service); (d) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 270 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, the Depositary, the
Administrative Agent or any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof that has a combined capital and surplus
and undivided profits of not less than $500,000,000; (e) fully collateralized repurchase
agreements with a term of not more than 30 days for securities described in clause (a) above
and entered into with a financial institution satisfying the criteria of clause (d) above;
(f) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested in
investments of the type described in clauses (a) through (e) above (without
regard, however, to the thirty (30) day term restriction described in clause (e)
above or the one year term restriction described in clause (a) above); (g) other
short-term investments utilized by foreign subsidiaries in accordance with normal investment
practices for cash management in investments of a type analogous to the foregoing; and (h)
cash.




     “Casualty Event” means a casualty event that causes all or a portion of the tangible
Collateral (as defined in the Related Documents) to be damaged, destroyed or rendered unfit
for normal use for any reason whatsoever, other than (a) ordinary use and wear and tear or
(b) any Event of Eminent Domain.




     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended from time to time.




     “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.




     “Change of Control” means, at any time after the Auction Date, any “person” or “group”
(within the meaning of Rules 13(d) of the Exchange Act and the rules of the Securities and
Exchange Commission thereunder as in effect on the Effective Date) (other than any such
“person” or “group” holding, directly or indirectly, beneficially or of record, any Equity
Interests in the Borrower as of the Auction Date) (the “Proposed Acquiror”) shall have
acquired ownership, directly or indirectly, beneficially or of record, of more than 35% on a
fully diluted basis of the aggregate voting power represented by the issued and outstanding
Equity Interests in the Borrower unless such Proposed Acquiror is a Qualified Owner and each
of S&P and Moody’s shall have provided written confirmation of their respective ratings of
the Debt under the BostonGen Facilities (as in effect immediately prior to such acquisition)
after giving effect to such acquisition. For the purposes of this definition, a “person” or
“group” shall not include any of the unit holders of the Borrower solely by virtue of such
unit holders being a party to the limited liability company agreement of the Borrower.



5









 






     “Co-Documentation Agent” has the meaning specified in the recital of parties to this
Agreement.




     “Co-Syndication Agent” has the meaning specified in the recital of parties to this
Agreement.




     “Commitment” means, with respect to any Lender at any time, the amount set forth
opposite such Lender’s name on Schedule I hereto under the caption “Commitment” or,
if such Lender has entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to Section
8.07(e) as such Lender’s “Commitment,” as such amount may be reduced at or prior to such
time pursuant to Section 2.05.




     “Commodity Hedge and Power Sale Agreement” means, with respect to power, electricity,
capacity, ancillary services, electric transmission, weather, fuel, fuel transmission, fuel
transportation, fuel storage, heat rate options, emissions allowances and emissions credits
and, in the case of each of the foregoing, products related thereto, any swap, cap, collar,
floor, ceiling, option, future, forward, spot agreement, contract for differences, basis
trade, purchase agreement, sale agreement, netting agreement, tolling agreement or any other
similar agreement, whether physical or financial, entered into with respect to any commodity
or commodity-related product.




     “Communications” has the meaning specified in Section 8.02(b).




     “Comparable Project” means one or more electric generating facilities that are of the
size and scope substantially similar to or greater than the Projects taken as a whole.




     “Confidential Information” means information that the Borrower furnishes to any
Administrative Agent or any Lender designated as confidential, but does not include any such
information that is or becomes generally available to the public other than as a result of a
breach by such Administrative Agent or any Lender of its obligations hereunder or that is or
becomes available to such Administrative Agent or such Lender from a source other than the
Borrower that is not, to the best of such Administrative Agent’s or such Lender’s knowledge,
acting in violation of a confidentiality agreement with the Borrower.




     “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




     “Consolidated Adjusted EBITDA” means, for any period (without duplication), an amount
determined for the Borrower and its Subsidiaries on a Consolidated basis equal to (a) the
sum, without duplication, of the amounts for such period of (i) Consolidated Net Income,
(ii) Consolidated Cash Interest Expense, (iii) provisions for taxes based on income, (iv)
Cash proceeds of any Permitted Emissions Sales Gains, (v) total depreciation expense, (vi)
total amortization expense, (vii) other non Cash items reducing Consolidated Net Income for
such period, including unrealized losses attributable to the change in fair market value of
all Commodity Hedge and Power Sale Agreements and Hedge Agreements and accruals for
liquidated damages and related late



6









 







fees associated with the Distrigas Litigation described in Schedule 4.01(g)
(excluding any such non Cash item to the extent that it represents an accrual or reserve for
potential Cash items in any future period or amortization of a prepaid Cash item that was
paid in a prior period), minus (b) to the extent included in determining Consolidated Net
Income, other non Cash items increasing Consolidated Net Income for such period, including
unrealized gains attributable to the changes in fair market value of all Commodity Hedge and
Power Sale Agreements and Hedge Agreements (excluding any such non Cash item to the extent
it represents the reversal of an accrual or reserve for potential Cash items in any prior
period). For purposes of this definition, Consolidated Adjusted EBITDA for each of the
periods ending the last day of each of June, September and December 2006 shall be
$57,250,000, $57,250,000 and $57,250,000, respectively.




     “Consolidated Cash Interest Expense” means, for any period, total interest expense
(including that portion attributable to Capitalized Leases in accordance with GAAP and
capitalized interest) of the Borrower and its Subsidiaries on a Consolidated basis with
respect to all outstanding Debt for Borrowed Money of the Borrower and its Subsidiaries for
such period, including all commissions, discounts and other fees and charges owed with
respect to letters of credit and net obligations under Hedge Agreements, but excluding,
however, (a) any amount for related late fees and interest associated with the Distrigas
Litigation described in Schedule 4.01(g), (b) interest payable under BostonGen’s
fuel oil inventory program permitted under the Related Documents and (c) interest and fees
associated with RMR Revenues subject to refund. For purposes of determining Consolidated
Cash Interest Expense for any period ending prior to January 1, 2008, Consolidated Cash
Interest Expense shall be deemed to be: (i) for the Fiscal Quarter ending March 31, 2007, an
amount equal to (x) actual Consolidated Cash Interest Expense for such Fiscal Quarter
multiplied by (y) four (4), (ii) for the two Fiscal Quarters ending June 30, 2007, an amount
equal to (x) actual Consolidated Cash Interest Expense for such Fiscal Quarters multiplied
by (y) two (2), (iii) for the three Fiscal Quarters ending September 30, 2007, an amount
equal to (x) actual Consolidated Cash Interest Expense for such Fiscal Quarters multiplied
by (y) four-thirds (4/3) and (iv) for the four Fiscal Quarters ending December 31, 2007,
actual Consolidated Cash Interest Expense for such Fiscal Quarters.




     “Consolidated Net Income” means, for any period, (a) the net income (or loss) of the
Borrower and its Subsidiaries on a Consolidated basis for such period determined in
conformity with GAAP, minus (b) to the extent otherwise included in Consolidated Net Income,
(i) the income of any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to such
Subsidiary, (ii) any after-tax gains or losses attributable to Asset Sales or returned
surplus assets of any Plan, (iii) (to the extent not included in clauses (i) and
(ii) above) any net extraordinary gains or net extraordinary losses and (iv) income
attributable to the RMR Agreement (other than Permitted RMR Revenues) plus (c) without
duplication, Permitted RMR Revenues. In addition, Consolidated Net Income for any period
shall reflect expenses associated with long-term service agreements on the



7









 







basis of equivalent operating hours incurred during such period (instead of on the
basis of maintenance work performed during such period as required by GAAP).




     “Consolidated Total Debt” means, as at any date of determination, the aggregate stated
balance sheet amount of all Debt for Borrowed Money of the Borrower and its Subsidiaries
determined on a Consolidated basis in accordance with GAAP.




     “Contractual Obligations” means, as applied to any Person, any provision of any Equity
Interests issued by such Person or of any indenture, mortgage, deed of trust, contract,
undertaking, agreement or other instrument to which such Person is a party or by which it or
any of its Properties is bound.




     “Control” means, with respect to any Person, the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of such Person,
whether through the ability to exercise voting power, contract or otherwise. “Controlling”
and “Controlled” have meanings correlative thereto.




     “Conversion,” “Convert” and “Converted” each refer to a conversion of Loans of one Type
into Loans of the other Type pursuant to Section 2.08 or 2.09.




     “CS” has the meaning specified in the recital of parties to this Agreement.




     “Current Assets” means, at any time, Consolidated current assets of the Borrower and
its Subsidiaries at such time that would, in accordance with GAAP, be classified in a
consolidated balance sheet of the Borrower as current assets at such date of determination,
but excluding cash, Cash Equivalents and liabilities owed to the Borrower and its
Subsidiaries by any Affiliate thereof.




     “Current Liabilities” means, at any time, Consolidated current liabilities of the
Borrower and its Subsidiaries at such time that would, in accordance with GAAP, be
classified on a balance sheet of the Borrower as current liabilities at such date of
determination, and in any event shall include all Debt payable on demand or within one year
from any date of determination without any option on the part of the obligor thereunder to
extend or renew beyond such year and all accruals for federal or other taxes based on or
measured by income and payable within one year, but excluding the current portion of
long-term debt (including any Debt hereunder) required to be paid within one year.




     “Debt” of any Person means, without duplication, (a) Debt for Borrowed Money of such
Person, (b) all obligations of such Person for the deferred purchase price of property or
services (other than trade payables not overdue (unless being contested in good faith by
appropriate proceedings for which reserves and other appropriate provisions, if any,
required by GAAP shall have been made) by more than 90 days incurred in the ordinary course
of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the



8









 







rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all obligations of such
Person as lessee under Capitalized Leases, (f) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in
such Person or any other Person or any warrants, rights or options to acquire such Equity
Interests, valued, in the case of Redeemable Preferred Interests, at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (g) all
obligations of such Person in respect of Hedge Agreements and Commodity Hedge and Power Sale
Agreements (valued at the Agreement Value thereof), in each case, pursuant to an
International Swap Dealers Association agreement form or similar arrangement, (h) all
Guaranteed Debt and Synthetic Debt of such Person and (i) all indebtedness and other payment
obligations referred to in clauses (a) through (h) above of another Person
secured by (or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without limitation, accounts
and contract rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such indebtedness or other payment obligations.




     “Debt for Borrowed Money” of any Person means, at any date of determination, the sum of
(a) all items that, in accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person at such date and (b) all Synthetic Debt of such
Person at such date; provided that with respect to each of clauses (a) and
(b) above, any amounts associated with unutilized and undrawn amounts under the
Synthetic L/C Facility and the Revolving Credit Facility (each as defined in the First Lien
Credit Agreement) shall not be deemed Debt for Borrowed Money.




     “Debt Proceeds” means, with respect to the incurrence or issuance of any Debt by the
Borrower (other than Permitted Debt) or any of its Subsidiaries (other than Debt Permitted
under the Related Documents), the Net Cash Proceeds payable to the Borrower or any of its
Subsidiaries in connection with such incurrence or issuance.




     “Default” means any Event of Default or any event that would constitute an Event of
Default but for the passage of time or the requirement that notice be given or both.




     “Default Interest” has the meaning set forth in Section 2.07(b).




     “Distribution” has the meaning set forth in the preliminary statements to this
Agreement.




     “Distrigas Litigation” means that certain case pending in the Suffolk County,
Massachusetts Superior Court (Civil Action No: 05-0764) entitled Distrigas of Massachusetts,
LLC v. Mystic Development and Exelon New England, LLC, as described in Schedule
4.01(g).




     “Dollars” and the sign “$” mean the lawful currency of the United States of America.



9









 






     “Domestic Lending Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or
in the Assignment and Acceptance pursuant to which it became a Lender, as the case may be,
or such other office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.




     “Effective Date” has the meaning specified in Section 3.01.




     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than an individual) approved by the Administrative
Agent (such approval not to be unreasonably withheld or delayed); provided, however, that
neither the Borrower nor its Subsidiaries shall qualify as an Eligible Assignee under this
definition.




     “Eminent Domain Proceeds” means with respect to any Event of Eminent Domain, the Net
Cash Proceeds payable to the Borrower or any of its Subsidiaries in connection with such
Event of Eminent Domain.




     “Environmental Action” means any action, suit, demand, demand letter, claim, written
notice of non compliance or violation, written notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, any Environmental Permit or Hazardous Material including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.




     “Environmental Law” means any Federal, state or local statute, law, ordinance, rule,
regulation, code, order, writ, judgment, injunction or decree relating to pollution or
protection of the environment or, as such relates to exposure to Hazardous Materials, health
or natural resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.




     “Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.




     “Equity Interests” means, with respect to any Person, shares of capital stock of (or
other ownership or profit interests in) such Person, warrants, options or other rights for
the purchase or other acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible into or exchangeable
for shares of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or other acquisition from such Person of such
shares (or such other interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights or other
interests are authorized or otherwise existing on any date of determination.



10









 






     “Equity Issuance” means any issuance of any Equity Interests by the Borrower or any of
its Subsidiaries, other than any Excluded Equity Issuance.




     “Equity Proceeds” means, with respect to any Equity Issuance, the Net Cash Proceeds
payable to the Borrower or any of its Subsidiaries in connection with such Equity Issuance.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.




     “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member
of the controlled group of the Borrower, or under common control with the Borrower, within
the meaning of Section 414(b) or (c) of the Internal Revenue Code.




     “ERISA Event” means (a)(i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30 day notice requirement with
respect to such event has been waived by the PBGC or (ii) the requirements of Section
4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12)
or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of the Borrower or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a
lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the
adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant
to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such Plan.




     “Eurocurrency Liabilities” has the meaning specified in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to time.




     “Eurodollar Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or such other office of such Lender
as such Lender may from time to time specify to the Borrower and the Administrative Agent.



11









 






     “Eurodollar Rate” means, for any Interest Period for all Eurodollar Rate Loans
comprising part of the same Borrowing an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) on the Interest Rate
Determination Date for such Interest Period for a period equal to such Interest Period
(provided that, if for any reason such rate is not available, the term “Eurodollar Rate”
shall mean, for any Interest Period for all Eurodollar Rate Loans, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates), by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period.




     “Eurodollar Rate Loan” means a Loan that bears interest as provided in Section
2.07(a)(ii).




     “Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar Rate
Loans comprising part of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate Loans is determined)
having a term equal to such Interest Period.




     “Event of Eminent Domain” means any action, series of actions, omissions or series of
omissions by any Governmental Authority (a) by which such Governmental Authority
appropriates, confiscates, condemns, expropriates, nationalizes, seizes or otherwise takes
all or a material portion of the Property of the Borrower or any of its Subsidiaries
(including any Equity Interests of the Borrower or any of its Subsidiaries) or (b) by which
such Governmental Authority assumes custody or control of the Property (other than
immaterial portions of such Property) or business operations of the Borrower or any of its
Subsidiaries or any Equity Interests of the Borrower or any of its Subsidiaries.




     “Events of Default” has the meaning specified in Section 6.01.




     “EWG” means an exempt wholesale generator within the meaning of Section 1262(6) of
PUHCA.




     “Excess Cash Flow” means, for any Semi-Annual Period, the excess (if any) of



12









 






     (a) the sum of (i) Consolidated Adjusted EBITDA for such Semi-Annual Period,
(ii) to the extent not included in such Consolidated Adjusted EBITDA, cash actually
received by the Borrower and its Subsidiaries during such Semi-Annual Period in
respect of extraordinary gains and gains from any sale, transfer or disposition of
cash or Cash Equivalents, or in respect of business interruption insurance, and
(iii) reductions (if any) to non-cash working capital of the Borrower and its
Subsidiaries for such Semi-Annual Period (i.e., the decrease (if any) in Current
Assets minus Current Liabilities from the beginning to the end of such Semi-Annual
Period) other than reductions attributable to the reclassification of any Debt from
“long term debt” to “Current Liabilities”




     over




     (b) the sum (for such Semi-Annual Period) of (i) the aggregate amount of all
principal payments, whether scheduled payments, mandatory prepayments or voluntary
prepayments, paid by the Borrower and its Subsidiaries on all Debt during such
period (including the principal portion of payments in respect of Capitalized Leases
but excluding prepayments made pursuant to clause (b) of Section
2.05), in each case, to the extent permitted to be made under this Agreement and
so long as not made with, or on account of, proceeds of Debt or equity issuances or
other proceeds that would not be included in Consolidated Adjusted EBITDA, (ii) all
Consolidated Cash Interest Expense paid or payable in cash during such Semi-Annual
Period (including the capitalized interest portion of obligations under Capitalized
Leases paid in cash and the interest portion of any deferred payment obligation paid
in cash during such Semi-Annual Period), to the extent such payments are in respect
of interest which accrued during such Semi-Annual Period; provided that, for
the avoidance of doubt, amounts deducted under this clause may be deducted in only
one Semi-Annual Period, (iii) all Capital Expenditures made by the Borrower and its
Subsidiaries paid or payable in cash to the extent permitted to be made under this
Agreement and so long as not financed with the proceeds of Debt or equity issuances
or other proceeds that would not be included in Consolidated Adjusted EBITDA;
provided that, for the avoidance of doubt, amounts deducted under this
clause may be deducted in only one Semi-Annual Period, (iv) all Taxes paid by the
Borrower in cash during such Semi-Annual Period, to the extent such payments are in
respect of income which accrued during such Semi-Annual Period, (v) to the extent
not subtracted in determining Consolidated Adjusted EBITDA for such Semi-Annual
Period, cash actually paid by the Borrower and its Subsidiaries during such
Semi-Annual Period in respect of losses from any sale, transfer or disposition of
cash or Cash Equivalents, (vi) to the extent added to Consolidated Net Income in
determining Consolidated Adjusted EBITDA for such Semi-Annual Period, Transaction
Costs actually paid in cash by the Borrower and its Subsidiaries during such
Semi-Annual Period, and (vii) additions (if any) to non-cash working capital of the
Borrower and its Subsidiaries for such Semi-Annual Period (i.e., the increase (if
any) in Current Assets minus Current Liabilities from the beginning to the end of
such Semi-Annual Period).



13









 






     “Excluded Equity Issuance” means (i) any issuance of any Equity Interests, the proceeds
of which are to be used to finance a Permitted Development, (ii) any issuance of any Equity
Interests in connection with an Equity Cure under (and as defined in) the Related Documents,
(iii) any issuance of any Equity Interest in connection with an Investment permitted
pursuant to Section 5.02(f)(iv), (iv) any issuance of any Equity Interests in
transactions permitted pursuant to Section 5.02(g)(i) or (v) any other issuance of
any Equity Interests in an amount not to exceed $25,000,000 in the aggregate.




     “Existing Credit Agreements” means, collectively, (i) the Amended and Restated First
Lien Credit and Reimbursement Agreement dated as of October 11, 2005 among the Borrower, the
First Lien Term Lenders named therein, the Working Capital Lenders named therein, the LC
Lenders named therein, the LC-DSR Lenders named therein, CS, as First Lien Administrative
Agent and CS, as Collateral Agent and (ii) the Amended and Restated Second Lien Credit and
Reimbursement Agreement dated as of October 11, 2005 among the Borrower, the Second Lien
Lenders named therein, CS, as Second Lien Administrative Agent and CS, as Collateral Agent.




     “Existing Debt” has the meaning specified in Section 4.01(p).




     “Facility” means, at any time, the aggregate amount of the Lenders’ Commitments at such
time.




     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for such day for
such transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.




     “Fee Letter” means the engagement letter dated November 20, 2006 between the Borrower,
BostonGen and CS.




     “FERC” means the Federal Energy Regulatory Commission and its successors.




     “Financing Documents” has the meaning specified in the Intercreditor Agreement.




     “First Lien Administrative Agent” has the meaning specified in the preliminary
statements to this Agreement.




     “First Lien Credit Agreement” has the meaning specified in the preliminary statements
to this Agreement.




     “First Lien Lenders” has the meaning specified in the preliminary statements to this
Agreement.



14









 






     “First Lien Pledge Agreement” means that certain First Lien Pledge Agreement dated as
of December 21, 2006 by the Borrower in favor of the First Lien Collateral Administrative
Agent for the benefit of the First Lien Secured Parties, as amended.




     “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.




     “Fiscal Year” means a fiscal year of the Borrower and its Subsidiaries ending on
December 31 of each calendar year.




     “Fore River” means Fore River Development, LLC, a Delaware limited liability company.




     “Fore River Project” means a combined-cycle electric generating facility in Weymouth
and Quincy, Massachusetts and owned by Fore River with a nominal capacity of 807 MW in
operation.




     “FPA” means the Federal Power Act, as amended.




     “Fund” means any Person (other than an individual) that is or will be engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course.




     “GAAP” has the meaning specified in Section 1.03.




     “Governmental Authority” means any nation or government, any state, province, city,
municipal entity or other political subdivision thereof, and any governmental, executive,
legislative, judicial, administrative or regulatory agency, department, authority,
instrumentality, commission, board, bureau or similar body, whether federal, state,
provincial, territorial, local or foreign.




     “Governmental Authorization” means any authorization, approval, consent, franchise,
license, covenant, order, ruling, permit, certification, exemption, notice, declaration or
similar right, undertaking or other action of, to or by, or any filing, qualification or
registration with, any Governmental Authority.




     “Granting Lender” has the meaning specified in Section 8.07(j).




     “Guaranteed Debt” means, with respect to any Person, any obligation or arrangement of
such Person to guarantee or intended to guarantee any Debt (“primary obligations”) of any
other Person (the “primary obligor”) in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guarantee, endorsement (other than
for collection or deposit in the ordinary course of business), co making, discounting with
recourse or sale with recourse by such Person of the obligation of a primary obligor, (b)
the obligation to make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to



15









 







advance or supply funds (A) for the purchase or payment of any such primary obligation
or (B) to maintain working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to purchase property,
assets, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any Guaranteed Debt shall be
deemed to be an amount equal to the stated or determinable amount of the primary obligation
in respect of which such Guaranteed Debt is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of the
instrument evidencing such Guaranteed Debt) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is required to
perform thereunder), as determined by such Person in good faith.




     “Hazardous Materials” means (a) petroleum or petroleum products, by-products or
breakdown products, radioactive materials, asbestos-containing materials and polychlorinated
biphenyls and (b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental
Law.




     “Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts
and other hedging agreements but excluding any Commodity Hedge and Power Sale Agreement.




     “Indemnified Costs” has the meaning specified in Section 7.05.




     “Indemnified Party” has the meaning specified in Section 8.04(b).




     “Initial Banks” means the Administrative Agent, each Co-Syndication Agent, each
Co-Documentation Agent, each Joint Book Running Manager and each Joint Lead Arranger.




     “Initial Extension of Credit” means the initial Borrowing hereunder.




     “Initial Lenders” means the banks, financial institutions and other institutional
lenders listed on the signature pages hereof as the Initial Lenders.




     “Initial Operating Budget” means has the meaning specified in Section
3.01(a)(ix).




     “Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded
benefit liabilities, as defined in Section 4001(a)(18) of ERISA.



16









 






     “Insurance Proceeds” means, with respect to any Casualty Event, the Net Cash Proceeds
payable to the Borrower or any of its Subsidiaries from time to time with respect to such
Casualty Event.




     “Intercreditor Agreement” means that certain Collateral Agency and Intercreditor
Agreement, dated as of December 21, 2006, by and among BostonGen, the Borrower, the
Guarantors named therein, the First Lien Collateral Administrative Agent, the Second Lien
Collateral Administrative Agent, First Lien Administrative Agent, CS, as Second Lien
Administrative Agent, certain Commodity Hedge Counterparties and the other Persons party
thereto from time to time, as amended.




     “Interest Period” means, for each Eurodollar Rate Loan comprising part of the same
Borrowing, the period commencing on the date of such Eurodollar Rate Loan or the date of the
Conversion of any Base Rate Loan into such Eurodollar Rate Loan, and ending on the last day
of the period selected by the Borrower pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one, two, three or six
months, or, if available to each Lender, nine or twelve months or such other period
acceptable to the Administrative Agent, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided, however, that:




     (a) the Borrower may not select any Interest Period with respect to any
Eurodollar Rate Loan under a Facility that ends after any principal repayment
installment date for such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Loans and of Eurodollar Rate Loans
having Interest Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate principal amount of
Loans under such Facility due and payable on or prior to such date;




     (b) [Reserved];




     (c) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day;




     (d) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month; and



17









 






     (e) the Borrower shall not be permitted to select Interest Periods to be in
effect at any one time which have expiration dates occurring on more than eight
different dates (it being understood that there shall not be more than eight
contracts in respect of Eurodollar Rate Loans in effect at any one time).




     “Interest Rate Determination Date” means, with respect to any Interest Period, the date
that is two Business Days prior to the first day of such Interest Period.




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.




     “Investment” in any Person means any loan or advance to such Person, any purchase or
other acquisition of any Equity Interests or Debt or the assets comprising a division or
business unit or a substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment in such Person,
including, without limitation, any acquisition by way of a merger or consolidation (or
similar transaction) and any arrangement pursuant to which the investor incurs Debt of the
types referred to in clause (h) or (i) of the definition of “Debt” in
respect of such Person.




     “Joint Book Running Managers” has the meaning specified in the recital of parties to
this Agreement.




     “Joint Lead Arrangers” has the meaning specified in the recital of parties to this
Agreement.




     “K Road Manager” means K Road BG Management, LLC, a Delaware limited liability company.




     “Lender” means any Lender that has a Commitment.




     “Lenders” means the Initial Lenders and each Person that shall become a Lender
hereunder pursuant to Section 8.07 for so long as such Initial Lender or Person, as
the case may be, shall be a party to this Agreement.




     “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (a)
Consolidated Total Debt as of such day to (b) Consolidated Adjusted EBITDA for the
four-Fiscal Quarter period ending on such date.




     “Lien” means, with respect to any Property, (a) any mortgage, deed of trust, deed to
secure debt, lien (statutory or otherwise), pledge, hypothecation, encumbrance, collateral
assignment, charge or security interest in, on or of such Property, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect as any of
the foregoing), relating to such Property, and (c) in the case of Equity Interests or debt
securities, any purchase option, call or similar right of a third party with respect to such
Equity Interests or debt securities. For the avoidance of doubt, “Lien”



18









 







shall not include any netting or set-off arrangements under any Contractual Obligation
(other than Contractual Obligations constituting Debt for Borrowed Money or having the
effect of Debt for Borrowed Money) otherwise permitted under the terms of the Loan
Documents.




     “Loan” has the meaning specified in Section 2.01.




     “Loan Documents” means (a) this Agreement, (b) the Notes and (c) the Fee Letter, in
each case as amended.




     “Make Whole Premium” means, with respect to any applicable prepayment, a make-whole
premium, as reasonably determined by the Administrative Agent in accordance with accepted
financial practice and as set forth in Schedule II.




     “Management and Operation Agreements” means each of the Management and Operation
Agreements each dated as of October 11, 2005 between K Road Manager and each of BostonGen
and the Project Companies.




     “Margin Stock” has the meaning specified in Regulation U.




     “Material Adverse Change” means any change, occurrence or development (including,
without limitation, as a result of regulatory changes applicable to the Borrower or any of
its Subsidiaries) that has had or could reasonably be expected to have a Material Adverse
Effect.




     “Material Adverse Effect” means a material adverse effect on (a) the condition
(financial or otherwise), business, results or operations of the Borrower and its
Subsidiaries, taken as a whole, (b) the rights and remedies of the Administrative Agent or
the Lenders, taken as a whole, under any Loan Document or (c) the ability of the Borrower to
perform its Obligations under the Loan Documents.




     “Maturity Date” means December 20, 2016.




     “Moody’s” means Moody’s Investors Services, Inc.




     “Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an obligation to
make contributions, or has within any of the preceding five plan years made or accrued an
obligation to make contributions.




     “Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA
Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b)
was so maintained and in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.



19









 






     “Mystic 8&9 Project” means two (2) combined-cycle electric generating facilities with a
combined nominal capacity of 1614 MW in operation in Everett, Massachusetts owned by Mystic
Development.




     “Mystic Development” means Mystic Development, LLC, f/k/a Exelon Mystic Development
LLC, a Delaware limited liability company.




     “Mystic I” means Mystic I, LLC, a Delaware limited liability company.




     “Mystic Station Project” means an electric generating facility with a nominal capacity
of 576 MW in operation in Everett, Massachusetts and owned by Mystic I.




     “Net Cash Proceeds” means:




     (a) with respect to any Asset Sale, the excess, if any, of (i) the sum of Cash
and Cash Equivalents received by the Borrower or any of its Subsidiaries in
connection with such Asset Sale minus (ii)(A) the out of pocket costs, fees,
commissions, premiums and expenses (including legal and accounting costs, fees and
expenses and title and recording fees, costs and expenses) reasonably incurred
directly or indirectly by the Borrower or any of its Subsidiaries in connection with
such Asset Sale to the extent such amounts were not deducted in determining the
amount referred to in clause (i) and (B) federal, state and local taxes paid
or reasonably estimated to be payable by the Borrower or any of its Subsidiaries in
connection therewith to the extent such amounts were not deducted in determining the
amount referred to in clause (i); provided, however, that, (i) to the extent
that, within three-hundred sixty-five (365) days of receipt of proceeds of any Asset
Sale in an amount not to exceed $500,000, the applicable Loan Party reinvests such
proceeds in productive assets of a kind then used or usable in connection with the
operation and maintenance of the Projects, such proceeds shall not constitute Net
Cash Proceeds and (ii) if the Borrower shall deliver a certificate of a Responsible
Officer of the Borrower to the Administrative Agent at the time of receipt thereof
setting forth the intent of the Borrower or any of its Subsidiaries to reinvest
proceeds of any Asset Sale in excess of $500,000 in productive assets of a kind then
used or usable in connection with the operation and maintenance of the Projects,
within three-hundred sixty-five (365) days of receipt of such proceeds, such
proceeds shall not constitute Net Cash Proceeds if and to the extent that the
Independent Engineer (as defined in the First Lien Credit Agreement) has provided to
the Administrative Agent a certificate, certifying that such assets are productive
assets of a kind then used or usable in connection with the operation and
maintenance of the Projects;




     (b) with respect to the incurrence or issuance of any Debt by the Borrower or
any of its Subsidiaries the excess if any, of (i) the sum of the Cash and Cash
Equivalents received by Borrower or any of its Subsidiaries in connection with such
incurrence or issuance minus (ii) the underwriting discounts and commissions or
other similar payments, and other out of pocket costs, fees, commissions, premiums
and expenses (including legal and accounting costs, fees



20









 







and expenses and title and recording fees, costs and expenses) reasonably
incurred directly or indirectly by the Borrower or any of its Subsidiaries in
connection with such incurrence or issuance to the extent such amounts were not
deducted in determining the amount referred to in clause (i) of this
paragraph (b);




     (c) with respect to any Equity Issuance, the excess of (i) the sum of the Cash
and Cash Equivalents received by the Borrower or any of its Subsidiaries in
connection with such sale or issuance minus (ii) the underwriting discounts and
commissions or similar payments, and other out of pocket costs, fees, commissions,
premiums and expenses (including legal and accounting costs, fees and expenses),
reasonably incurred by the Borrower or any of its Subsidiaries in connection with
such sale or issuance to the extent such amounts were not deducted in determining
the amount referred to in clause (i) of this paragraph (c); and




     (d) with respect to any Event of Eminent Domain or Casualty Event, the excess,
if any, of (i) the sum of Cash and Cash Equivalents received by the Borrower or any
of its Su
bsidiaries in connection with such Event of Eminent Domain or Casualty
Event minus (ii) the sum of (A) the out-of-pocket costs and expenses reasonably
incurred by the Borrower or any of its Subsidiaries in connection with the
collection, enforcement, negotiation, consummation, settlement, proceedings,
administration or other activity related to the receipt or collection of the
relevant proceeds to the extent such amounts were not deducted in determining the
amount referred to in clause (i) of this paragraph (d) and (B) federal,
state and local taxes reasonably estimated to be payable by the Borrower or any of
its Subsidiaries in connection therewith to the extent such amounts were not
deducted in determining the amount referred to in clause (i) of this
paragraph (d).




     “Non-Consenting Lender” has the meaning specified in Section 8.01(c).




     “Note” means a promissory note of the Borrower payable to the order of any Lender, in
substantially the form of Exhibit A hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from the Loan made by such Lender, as amended.




     “Notice of Borrowing” means a Notice of Borrowing substantially in the form of
Exhibit B hereto.




     “NPL” means the National Priorities List under CERCLA.




     “Obligation” means all payment obligations of every nature of the Borrower from time to
time owed to the Administrative Agent (including former Administrative Agents) or any Lender
from time to time under any Loan Document, whether for principal, interest (including
interest which, but for the filing of a petition in bankruptcy with respect to the Borrower,
would have accrued on any Obligation, whether or not a claim is allowed against the Borrower
for such interest in the related bankruptcy proceeding), expenses, indemnification or
otherwise.



21









 






     “Other Taxes” has the meaning specified in Section 2.11(b).




     “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into
law October 26, 2001.




     “PBGC” means the Pension Benefit Guaranty Corporation (or any successor).




     “Permitted Debt” means:




     (a) Debt under the Loan Documents;




     (b) (without duplication of any other Permitted Debt) Existing Debt;




     (c) Debt of the Borrower arising by reason of any Lien permitted by Section
5.02(a)(iii);




     (d) Debt of the Borrower arising from the honoring of a check, draft or similar
instrument of the Borrower drawn against insufficient funds, provided, however, that
such Debt is extinguished within five Business Days of its incurrence;




     (e) to the extent deemed to be Debt, (1) unit appreciation rights granted to
directors in an aggregate amount (valued as of the date of issuance) incurred in any
Fiscal Year not to exceed $1,000,000 in such Fiscal Year (provided that such
directors shall have acknowledged and agreed that, with respect to any such unit
appreciation rights granted after the date hereof, any purchase, redemption,
retirement, defeasance or other acquisition of such unit appreciation rights by the
Borrower may be made only to the extent permitted by Section 5.02(g)) and
(2) obligations to purchase warrants in an aggregate amount to not exceed $1,000,000
at any time outstanding; and




     (f) additional unsecured Debt of the Borrower not to exceed $300,000 at any
time outstanding.




     “Permitted Development” means, after the Effective Date, the development or
construction of any electric generating facility; provided that at the time any amount is
invested (or committed to be invested) in respect of Permitted Developments by BostonGen and
its Subsidiaries in excess of $10,000,000 in the aggregate each of the following conditions
are met:




     (a) the Permitted Development is financed with amounts permitted pursuant to
Sections 5.02(b) and 5.02(f)(iii).




     (b) an independent engineer reasonably acceptable to the Administrative Agent
shall have certified that any such development or construction would not reasonably
be expected to materially and adversely impact the operation of the Projects or the
efficient generation and distribution of



22









 







electricity from the Projects (both during and after such development or
construction) and shall have confirmed to the Lenders that amounts invested and
committed to be invested by BostonGen and its Subsidiaries are sufficient to pay for
all costs associated therewith; and




     (c) each of S&P and Moody’s shall have provided written confirmation of their
respective ratings of the Debt under BostonGen Facilities (as in effect immediately
prior to giving effect to such Permitted Development).




     “Permitted Emissions Sales Gains” means gains (determined in accordance with GAAP) from
the sales of Accumulated Emissions Credits (as defined in the Security Deposit Agreement) to
the extent such proceeds are deposited into the Revenue Account in accordance with the
Security Deposit Agreement.




     “Permitted Liens” means (a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b); (b) pledges or
deposits in the ordinary course of business to secure obligations under workers’
compensation, unemployment insurance, social security legislation or other similar
legislation or to secure public or statutory obligations; (c) Liens arising from judgments
(or the payment of money not constituting a Default under Section 6.01(g)) or
securing appeal or other surety bonds related to such judgments.




     “Permitted RMR Revenues” means, for any period, funds transferred to the Revenue
Account pursuant to Section 3.15(a)(iv) of the Security Deposit Agreement; provided that for
purposes of determining the applicable Fiscal Quarter to which such funds will be included
in Consolidated Net Income, funds transferred within 45 days following any Fiscal Quarter
shall be deemed, at the option of the Borrower, to be included (without duplication) in
Consolidated Net Income for such Fiscal Quarter or the immediately preceding Fiscal Quarter.




     “Permitted Subsidiary Asset Sales” means:




     (i) sales of (or the granting of any option or other right to purchase, lease or
otherwise acquire) power, natural gas, fuel, capacity, gas or fuel transportation, power
transportation or ancillary services or other inventory in the ordinary course of such
Person’s business including, without limitation, Permitted Trading Activities;




     (ii) sales, transfers or other dispositions in the ordinary course of its business of
Property that is surplus (including, without limitation, surplus land and emission credits
not required for the continued operation of any Project in any given year), obsolete,
defective, worn-out, damaged, rendered unfit for normal use or property that is being
exchanged for similar property, or that individually or in the aggregate is not essential
for the continued operation of any Project;




     (iii) the liquidation, sale or use of Cash and Cash Equivalents;



23









 






     (iv) sales, transfers or other dispositions of assets among BostonGen and its
Subsidiaries;




     (v) sales or discounts without recourse of accounts receivable arising in the ordinary
course of such Person’s business in connection with the compromise or collection thereof;




     (vi) dispositions required or contemplated by the Contractual Obligations in existence
as of the date hereof with or relating to Governmental Authorities and relating to the
Project Companies; and




     (vii) sales of Property by BostonGen or its Subsidiaries so long as (A) the purchase
price paid to BostonGen or such Subsidiary for such Property shall be no less than the fair
market value of such Property at the time of such sale, (B) at least 75% of the
consideration to be received is paid in cash or Cash Equivalents and such remaining 25% is
not a debt instrument of the Borrower or any of its Affiliates (provided that for purposes
of this subclause (B), (I) any amounts deposited into an escrow or other type of holdback
account and any consideration in the form of readily marketable securities shall be deemed
to be cash, (II) customary purchase price adjustments may be settled on a non-cash basis and
(III) the assumption of Debt relating to the asset being disposed shall be disregarded for
the purposes of this provision); and (C) the aggregate purchase price paid to BostonGen and
its Subsidiaries for such Property and all other Property sold by BostonGen and its
Subsidiaries (1) during the same Fiscal Year pursuant to this clause (vii) shall not exceed
$50,000,000 and (2) since the Effective Date shall not exceed $250,000,000.




     “Permitted Trading Activity” means the entry into of any Commodity Hedge and Power Sale
Agreement in a manner consistent with Prudent Industry Practice from time to time in support
of the marketing and trading related to the Projects or any Permitted Development, whether
physical or financial, in each case, to the extent such activity is conducted in the
ordinary course of business of the Borrower and the other Loan Parties.




     “Person” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency thereof.




     “Plan” means a Single Employer Plan or a Multiple Employer Plan.




     “Platform” has the meaning specified in Section 8.02(b).



24









 






     “Preferred Interests” means, with respect to any Person, Equity Interests issued by
such Person that are entitled to a preference or priority over any other Equity Interests
issued by such Person upon any distribution of such Person’s property and assets, whether by
dividend or upon liquidation.




     “Project Company” means each of Mystic I, Mystic Development and Fore River (and
collectively, the “Project Companies”).




     “Projects” means, Mystic Station Project, Mystic 8&9 Project and Fore River Project
and, if applicable, the Permitted Development.




     “Property” means any right or interest in or to any asset or property of any kind
whatsoever (including Equity Interests), whether real, personal or mixed and whether
intangible or tangible.




     “Prudent Industry Practice” means those practices, methods, equipment, specifications
and standards of safety and performance, as are commonly used by electric generating
stations in the United States utilizing comparable fuels as good, safe and prudent
engineering practices would dictate in connection with the design, construction, operation,
maintenance, repair and use of electrical and other equipment, facilities and improvements
of such electrical generating stations, with commensurate standards of safety, performance,
dependability (including the implementation of procedures that shall not adversely affect
the long term reliability of the Projects, in favor of short term performance), efficiency
and economy, in each such case as the same may evolve from time to time, consistent with
applicable law and considering the state in which a Project is located and the type and size
of such Project. “Prudent Industry Practice” as defined herein does not necessarily mean
one particular practice, method, equipment specification or standard in all cases, but is
instead intended to encompass a broad range of acceptable practices, methods, equipment
specifications and standards.




     “PUHCA” means the Public Utility Holding Company Act of 2005.




     “Qualified Owner” means any Person (including any Person Controlled by such Person)
that (a) is a past or present owner of a Comparable Project, (b) has substantial experience
as an operator of a Comparable Project or (c) has contracted for the operation of the
Projects by K Road Manager or by a Person meeting the requirements of clause (b) of this
definition.




     “Redeemable” means, with respect to any Equity Interest, any such Equity Interest that
(a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of the holder.




     “Refinance” means, in respect of the applicable Debt, (a) such Debt (or any portion
thereof) as extended, renewed, defeased, refinanced, replaced, refunded or repaid, and (b)
any other Debt issued in exchange or replacement for or to refinance such Debt,



25









 







in whole or in part, whether with the same or different leaders, arrangers and/or a
longer or shorter maturity, in each case, to the extent permitted under the terms of the
Loan Documents. “Refinanced” and “Refinancing” shall have correlative meanings.




     “Register” has the meaning specified in Section 8.07(d).




     “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.




     “Related Documents” means the First Lien Credit Agreement and the Second Lien Credit
Agreement.




     “Related Fund” means, with respect to any Lender that is a Fund, any other Fund that is
advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or
an Affiliate of such entity) that administers, advises or manages such Lender.




     “Repayment Event” means the satisfaction of the following conditions the repayment in
full in Cash of all of the outstanding principal amount of the Loans and all other
Obligations (other than contingent Obligations) due and payable under the Loan Documents.




     “Required Lenders” means, at any time, Lenders owed or holding more than 50% of the
aggregate principal amount of the Loans outstanding at such time.




     “Responsible Officer” means, as to any Person, any individual holding the position of
chairman of the board (if an officer), president, chief executive officer, senior vice
president, treasurer, chief financial officer or director of finance.




     “Revenue Account” has the meaning specified in the Security Deposit Agreement.




     “RMR Agreement” means the Cost-of-Service Agreement, effective as of January 1, 2006,
among Mystic Development, LLC, Sempra Energy Trading Corp. and ISO New England Inc.




     “RMR Revenues” has the meaning specified in the Security Deposit Agreement.




     “S&P” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill
Companies, Inc.




     “Second Lien Administrative Agent” has the meaning specified in the preliminary
statements to this Agreement.




     “Second Lien Credit Agreement” has the meaning specified in the preliminary statements
to this Agreement.




     “Second Lien Lenders” has the meaning specified in the preliminary statements to this
Agreement.



26









 






     “Second Lien Pledge Agreement” means that certain Second Lien Pledge Agreement dated as
of December 21, 2006 by the Borrower in favor of the Second Lien Collateral Administrative
Agent for the benefit of the Second Lien Secured Parties, as amended.




     “Security Deposit Agreement” means that certain Security Deposit Agreement dated
December 21, 2006 by BostonGen and its Subsidiaries and the First Lien Collateral Agent, the
Second Lien Collateral Agent and the Depositary, in each case, party thereto, as amended.




     “Semi-Annual Period” means a period commencing on a Semi-Annual Prepayment Date and
ending on the next-succeeding Semi-Annual Prepayment Date.




     “Semi-Annual Prepayment Date” means the last Business Day of each June and December,
commencing on the first to occur of such date after the BostonGen Repayment Event.




     “Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and no
Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have liability under Section 4069
of ERISA in the event such plan has been or were to be terminated.




     “Solvent” and “Solvency” mean, with respect to any Person on a particular date, that on
such date (a) the fair value of the property and assets of such Person is greater than the
total amount of liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and
liabilities as they mature (taking into account reasonably anticipated prepayments and
refinancings) and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property would
constitute an unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an
actual or matured liability.




     “Subsidiary” of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the issued
and outstanding capital stock having ordinary voting power to elect a majority of the Board
of Directors of such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such
partnership, joint venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled by such
Person, by



27









 







such Person and one or more of its other Subsidiaries or by one or more of such
Person’s other Subsidiaries.




     “Synthetic Debt” means, with respect to any Person, without duplication of any clause
within the definition of “Debt,” the principal amount of all (a) obligations of such Person
under any lease that is treated as an operating lease for financial accounting purposes and
a financing lease for tax purposes (i.e., a “synthetic lease”), (b) obligations of such
Person in respect of transactions entered into by such Person, the proceeds from which would
be reflected on the financial statements of such Person in accordance with GAAP as cash
flows from financings at the time such transaction was entered into (other than as a result
of the issuance of Equity Interests) and (c) obligations of such Person in respect of other
transactions entered into by such Person that are not otherwise addressed in the definition
of “Debt” or in clause (a) or (b) above that are intended to function
primarily as a borrowing of funds (including, without limitation, any minority interest
transactions that function primarily as a borrowing).




     “Taxes” has the meaning specified in Section 2.11(a).




     “Tender Offer” shall mean, collectively, (a) the offer by the Borrower to purchase
outstanding units of limited liability company interest in the Borrower pursuant to the
Offer to Purchase dated as of November 16, 2006 and the related letter of transmittal sent
to holders of such units, as each may be amended and supplemented from time to time and (b)
the repurchase of warrants and the cashless exercise of warrants referred to in such Offer
to Purchase.




     “Transaction” means (a) the entering into of the Initial Commodity Hedge and Power Sale
Agreements (as defined in the First Lien Credit Agreement), (b) the Distribution and the
Tender Offer, (c) the entering into of the First Lien Loan Documents and the refinancing of
amounts outstanding under the Existing Credit Agreements in part with the proceeds of
amounts under the First Lien Credit Agreement, (d) the entering into of the Second Lien Loan
Documents and the refinancing of amounts outstanding under the Existing Credit Agreements in
part with the proceeds of amounts under the Second Lien Credit Agreement, (e) the entering
into of the Mezzanine Documents and (f) the other transactions contemplated by the
Transaction Documents.




     “Transaction Costs” has the meaning specified in the preliminary statements to this
Agreement.




     “Transaction Documents” means, collectively, the Loan Documents and the Related
Documents.




     “Type” refers to the distinction between Loans bearing interest at the Base Rate and
Loans bearing interest at the Eurodollar Rate.




     “Units” means units of limited liability company interests in the Borrower.



28









 






     “Voting Interests” means shares of capital stock issued by a corporation, or equivalent
Equity Interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency. For the avoidance of doubt with regard to the Borrower, all Units
shall be deemed to be Voting Interests.




     “Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of
ERISA.



          SECTION 1.02. Computation of Time Periods; Other Definitional Provisions. In this
Agreement and the other Loan Documents in the computation of periods of time from a specified date
to a later specified date, the word “from” means “from and including” and the words “to” and
“until” each mean “to but excluding.” References in the Loan Documents to any agreement or
contract “as amended” shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in accordance with its
terms.




          SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles in effect in the
United States from time to time (“GAAP”); provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.




ARTICLE II




AMOUNTS AND TERMS OF THE LOANS




          SECTION 2.01. The Loans. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance (a “Loan”) to the Borrower on the Effective Date in
an amount not to exceed such Lender’s Commitment at such time. The Borrowing on the Effective Date
shall consist of Eurodollar Rate Loans and shall be made simultaneously by the Lenders ratably
according to their Commitments. Amounts borrowed under this Section 2.01 and repaid or
prepaid may not be reborrowed.




          SECTION 2.02. Making the Loans. Each Lender shall, before 11:00 A.M. (New York City
time) on the date of the initial Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day
funds, such Lender’s ratable portion of such Borrowing in accordance with the Commitments of such
Lender. After the Administrative Agent’s receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will





29









 







make such funds available to the Borrower by crediting the account of the Borrower set forth
in the Notice of Borrowing.




          (a) The initial Notice of Borrowing shall be irrevocable and binding on the Borrower. In the
case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Loans, the Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the date specified in
the initial Notice of Borrowing conditions set forth in Article III, including, without
limitation, any loss (but excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to
fund the Loan to be made by such Lender when such Loan, as a result of such failure, is not made on
such date.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the date
of the initial Borrowing that such Lender will not make available to the Administrative Agent such
Lender’s ratable portion of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay
to the Administrative Agent forthwith on demand such corresponding amount and to pay interest
thereon, for each day from the date such amount is made available to the Borrower until the date
such amount is repaid or paid to the Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at such time under Section 2.07 to Loans comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall constitute such Lender’s
Loan as part of such Borrowing for all purposes.




          (c) The failure of any Lender to make the Loan to be made by it as part of the initial
Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan
on the date of such Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of the initial Borrowing.




          SECTION 2.03. [Reserved]




          SECTION 2.04. Repayment of Loans. The Borrower shall repay to the Administrative Agent for
the ratable account of the Lenders on the Maturity Date the aggregate outstanding principal amount
of the then outstanding Loans.




          SECTION 2.05. Prepayments.




          (a) From time to time on any Business Day, the Borrower may make a voluntary prepayment, in
whole or in part, of the outstanding principal amount of any Loans together with any accrued
interest, which has not been previously capitalized and added to the outstanding principal amount
of the Loans, to the date of such prepayment on the aggregate





30









 







outstanding principal amount prepaid; provided that (i) any prepayment of Loans is to be
applied pro rata among the Loans so prepaid of the same type and, if applicable, having the same
Interest Period of all Lenders that have made such Loans (to be applied as set forth in Section
2.06), (ii) all such voluntary prepayments shall require at least one but no more than five
Business Days’ (and at least three Business Days in the case of Eurodollar Rate Loans) irrevocable
prior written notice the Administrative Agent, (iii) all such voluntary partial prepayments of any
Loans shall be in an aggregate minimum amount of $5,000,000 and (iv) each prepayment of Loans shall
include the applicable Call Premium (if any). Each such irrevocable request may be made by
telephone confirmed promptly by hand delivery, portable document format (PDF) or facsimile to the
Administrative Agent of the applicable voluntary prepayment.




          (b) Promptly following each Semi-Annual Prepayment Date, beginning with the first of such
Semi-Annual Prepayment Dates after the BostonGen Repayment Event, the Borrower shall make a
mandatory prepayment of the Loans with 100% of Excess Cash Flow (if any) for the Semi-Annual Period
then ending and deliver a statement, certified by the senior financial officer of the Borrower,
that sets forth in reasonable detail the calculation of such Excess Cash Flow; provided that if the
Leverage Ratio is less than 2.50:1.00, the percentage of Excess Cash Flow to be prepaid in
accordance with this clause (b) shall be 50.0%.




          (c) From and after the BostonGen Repayment Event, no later than one Business Day following the
receipt by the Borrower or any Subsidiary of any Debt Proceeds, the Borrower shall deliver to the
Administrative Agent a calculation of the amount of such Debt Proceeds and make a mandatory
prepayment of the Loans in an amount equal to 100% of such Debt Proceeds to be applied as set forth
in Section 2.06.




          (d) From and after the BostonGen Repayment Event, no later than five Business Days following
the receipt by the Borrower or any Subsidiary of any Asset Sale Proceeds, Insurance Proceeds or
Eminent Domain Proceeds, the Borrower shall deliver to the Administrative Agent a calculation of
the amount of such proceeds and, in the event the aggregate amount of such proceeds received by the
Borrower or any Subsidiary exceeds $10,000,000, the Borrower shall make a mandatory prepayment of
the Loans in an amount equal to 100% of all such Asset Sale Proceeds, Insurance Proceeds or Eminent
Domain Proceeds, to be applied as set forth in Section 2.06; provided that, upon written
notice by the Borrower to the Administrative Agent not more than five Business Days following
receipt of any such Asset Sale Proceeds, Insurance Proceeds or Eminent Domain Proceeds, such
proceeds may be retained by the Borrower (and be excluded from the prepayment requirements of this
clause) if (i) the Borrower informs the Administrative Agent in such notice of its good faith
intention to apply such Asset Sale Proceeds, Insurance Proceeds or Eminent Domain Proceeds to the
acquisition of other assets or properties consistent with the businesses permitted to be conducted
pursuant to Article V or, in the case of Insurance Proceeds, the rebuilding or restoration
of the assets subject to the Casualty Event which resulted in such Insurance Proceeds, and (ii)
such proceeds are applied or committed to such acquisition, rebuilding or restoration. The amount
of such Asset Sale Proceeds, Insurance Proceeds or Eminent Domain Proceeds unused or uncommitted
shall be applied to prepay the Loans as set forth in this clause (d) and in Section
2.06.




31









 








          (e) From and after the BostonGen Repayment Event, no later than one Business Day following the
receipt by the Borrower or any Subsidiary of any Equity Proceeds, the Borrower shall make a
mandatory prepayment of the Loans in an amount equal to 50% of such Equity Proceeds, to be applied
as set forth in Section 2.06; provided that if the Leverage Ratio is less than 2.50:1.00,
the percentage of Equity Proceeds to be prepaid in accordance with this clause (e) shall be
25%.




          Each prepayment of any Loans made pursuant to this Section 2.05 shall be without
premium or penalty, except as may be required by Section 8.04(c) and Section
2.05(a). The Borrower shall give prior written notice of any mandatory prepayment required
under clauses (b), (c), (d) and (e) of this Section 2.05
(including the date and an estimate of the aggregate amount of such mandatory prepayment at least
five Business Days prior thereto); provided that the failure to give such notice shall not relieve
the Borrower of its obligation to make such mandatory prepayments on or prior to the dates set
forth in such clauses (b), (c), (d) and (e) and the Borrower shall
be permitted to make such mandatory prepayments on or prior to such dates.




          SECTION 2.06. Application. Amounts prepaid pursuant to Section 2.05 shall be
applied as set forth in this Section.




          (a) Subject to clause (b) of this Section 2.06, each prepayment or repayment
of the principal of the Loans shall be applied, to the extent of such prepayment or repayment,
first, to the principal amount thereof being maintained as Base Rate Loans, and
second, subject to the terms of Section 8.04(c), to the principal amount thereof
being maintained as Eurodollar Rate Loans.




          (b) Each prepayment of Loans made pursuant to Section 2.05 pro rata to a prepayment of
the outstanding principal amount of all Loans regardless of what Type (with the amount of such
prepayment of Loans being applied to the remaining Loans on a pro rata basis); provided that,
subject to the terms set forth in the immediately succeeding clause (c), each Lender
entitled to receive any mandatory prepayment of its Loans under this clause may waive its right to
receive any such mandatory prepayment, and the aggregate amount of such prepayments so waived shall
be offered to the Lenders that did not waive their rights to such prepayments for application in
accordance with this clause.




          (c) So long as the Administrative Agent has received prior written notice from the Borrower of
a mandatory prepayment that may be waived by the Lenders pursuant to clause (b) above, the
Administrative Agent shall provide notice of such mandatory prepayment to the Lenders. Unless the
Administrative Agent shall otherwise so provide, in the event a Lender does not notify the
Administrative Agent in writing of its waiver of the right to receive:





          (i) its pro rata share of such mandatory prepayment; and




          (ii) its pro rata share (such pro rata share to be based on the percentage obtained by
dividing the principal amount of Loans held immediately prior to such mandatory prepayment
by such Lender by the aggregate principal amount of Loans held immediately prior to such
mandatory prepayments by the Lenders that do not waive their



32









 







right to receive a portion of the mandatory prepayment described in this clause) of any
portion (if any) of such mandatory prepayment that may be waived by Lenders, within two
Business Days of the providing of such notice by the Administrative Agent;


the Administrative Agent may assume that such Lender will receive its applicable pro rata share of
such mandatory prepayment and such portion (if any) of such mandatory prepayment that has actually
been waived by the Lenders. It is understood and agreed by the Borrower that, notwithstanding
receipt by the Administrative Agent of any such mandatory prepayment, the Loans shall not be deemed
repaid, unless otherwise consented to by the Administrative Agent, until five Business Days have
elapsed from the delivery to the Administrative Agent of the notice described in the last paragraph
of Section 2.05.




          SECTION 2.07. Interest.




          (a) Scheduled Interest. Interest, including Default Interest, on the unpaid principal
amount of each Loan owing to each Lender shall be capitalized and added to the outstanding amount
of such Loan from the date of such Loan until such principal amount shall be paid in full, at the
following rates per annum:





     (i) Base Rate Loans. During such periods as such Loan is a Base Rate Loan, a
rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to
time plus (B) the Applicable Margin in effect from time to time, which shall be
automatically capitalized and added to the outstanding principal amount of such Loan in
arrears quarterly on the last Business Day of each December, March, June and September
during such periods and on the date such Base Rate Loan shall be Converted or paid in full
commencing on the last Business Day of March 2007.




     (ii) Eurodollar Rate Loans. During such periods as such Loan is a Eurodollar
Rate Loan, a rate per annum equal at all times during each Interest Period for such Loan to
the sum of (A) the Eurodollar Rate for such Interest Period for such Loan plus (B) the
Applicable Margin in effect, which shall be automatically capitalized and added to the
outstanding principal amount of such Loan in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Loan shall be Converted or paid in full.



          Any accrued and capitalized interest under this Section 2.07 shall, after being so
capitalized, be treated as a part of the principal amount of such Loan and bear interest in
accordance with this Section 2.07.




          (b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default, the Borrower shall pay interest (“Default Interest”) on (i) the unpaid principal amount of
each Loan owing to each Lender, payable in arrears on the dates referred to in clause (i)
or (ii) of Section 2.07(a), as applicable, and, payable in the manner set forth in
subsection (a), at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Loan pursuant to clause (i) or (ii) of
Section 2.07(a), as applicable,




33









 







and (ii) to the fullest extent permitted by applicable law, the amount of any interest, fee or other amount
payable under this Agreement or any other Loan Document to any Agent or any Lender that is not paid
when due, from the date such amount shall be due until such amount shall be paid in full, payable
in arrears on the date such amount shall be paid in full and, payable in the manner set forth in
subsection (a), at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on Base Rate Loans pursuant to clause (i) of Section
2.07(a); provided, however, that following the making of the request or the granting of the
consent specified by Section 6.01 to authorize the Administrative Agent to declare the
Loans due and payable pursuant to the provisions of Section 6.01, Default Interest shall
accrue and be payable hereunder whether or not previously required by the Administrative Agent;
provided, further, that notwithstanding the foregoing, Default Interest arising pursuant to this
Section 2.07(b) shall be automatically capitalized and added to the outstanding principal
amount of such Loan and will remain due and payable. Payment or acceptance of the increased rates
of interest provided for in this Section 2.07(b) is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit
any rights or remedies of the Administrative Agent or any Lender.




          (c) Notice of Interest Period and Interest Rate. Promptly after the Effective Date, a
notice of Conversion pursuant to Section 2.08 or a notice of selection of an Interest
Period pursuant to the terms of the definition of “Interest Period,” the Administrative Agent shall
give notice to the Borrower and each Appropriate Lender of the applicable Interest Period and the
applicable interest rate determined by the Administrative Agent for purposes of clause
(a)(i) or (a)(ii) above.




          (d) Administrative Agent’s Fees. The Borrower shall pay to the Administrative Agent
for its own account such fees as may from time to time be agreed between the Borrower and the
Administrative Agent.




          SECTION 2.08. Conversion of Loans.




          (a) Optional. The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Section 2.09,
Convert all or any portion of the Loans of one Type into Loans of the other Type; provided,
however, that any Conversion of Eurodollar Rate Loans into Base Rate Loans shall be made only on
the last day of an Interest Period for such Eurodollar Rate Loans or, if made on another date,
shall be subject to the provisions of Section 8.04(c), any Conversion of Base Rate Loans
into Eurodollar Rate Loans shall be in an amount not less than an aggregate minimum amount of
$5,000,000. Each such notice of Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion and (ii) if such Conversion is into Eurodollar Rate Loans, the
duration of the initial Interest Period for such Loans. Each notice of Conversion shall be
irrevocable and binding on the Borrower.




          (b) Mandatory. (i) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Loans in accordance with the provisions contained in the
definition of “Interest Period” in Section 1.01, the Administrative Agent will forthwith so
notify




34









 







the Borrower and the Lenders, whereupon each such Eurodollar Rate Loan shall have an Interest
Period of one month.




          (ii) Upon the occurrence and during the continuance of any Event of Default, (x) each
Eurodollar Rate Loan will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Loan and (y) the obligation of the Lenders to make, or to
Convert Loans into, Eurodollar Rate Loans shall be suspended.




          SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority (whether or not having
the force of law), there shall be any increase in the cost to any Lender of agreeing to make or of
making, funding or maintaining Eurodollar Rate Loans (excluding, for purposes of this Section
2.09, any such increased costs resulting from (x) Taxes or Other Taxes (as to which Section
2.11 shall govern) and (y) changes in the basis or rate of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrower by such Lender,
shall be conclusive and binding for all purposes, absent manifest error.




          (b) If any Lender determines that compliance with any law or regulation or any guideline or
request from any central bank or other Governmental Authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such capital is increased
by or based upon the existence of such Lender’s Loans, then, upon demand by such Lender or such
corporation (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be allocable to the
existence of such Lender’s Loans. A certificate as to such amounts submitted to the Borrower by
such Lender shall be conclusive and binding for all purposes, absent manifest error.




          (c) If, with respect to any Eurodollar Rate Loans, Lenders owed at least 331⁄3% of the then
aggregate unpaid principal amount thereof notify the Administrative Agent that the Eurodollar Rate
for any Interest Period for such Loans will not adequately reflect the cost to such Lenders of
making, funding or maintaining their Eurodollar Rate Loans for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
such Eurodollar Rate Loan will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Loan and (ii) the obligation of the Lenders to make, or to
Convert Loans into, Eurodollar Rate Loans shall be suspended, in each case, until the
Administrative Agent shall notify the Borrower that such Lenders have determined




35









 







that the circumstances causing such suspension no longer exist, in which case (x) the
obligation of the Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be
reinstated.




          (d) Notwithstanding any other provision of this Agreement, if the introduction of or any
change in or in the interpretation of any law or regulation shall make it unlawful, or any central
bank or other Governmental Authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Loans or to
continue to fund or maintain Eurodollar Rate Loans hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrower through the Administrative Agent, (i) each Eurodollar Rate
Loan of such Lender will automatically, upon such demand, Convert into a Base Rate Loan and (ii)
the obligation of the Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be
suspended, in each case, until the Administrative Agent shall notify the Borrower that such Lender
has determined that the circumstances causing such suspension no longer exist, in which case the
obligation of the Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be
reinstated; provided, however, that, before making any such demand, such Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a designation would allow
such Lender or its Eurodollar Lending Office to continue to perform its obligations to make
Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans and would not, in
the judgment of such Lender, be otherwise disadvantageous to such Lender.




          SECTION 2.10. Payments and Computations. (a) The Borrower shall make each payment
hereunder and under the other Loan Documents, irrespective of any right of counterclaim or set-off
(except as otherwise provided in Section 2.12), not later than 11:00 A.M. (New York City
time) on the day when due in U.S. dollars to the Administrative Agent at the Administrative Agent’s
Account in same day funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day in the Administrative
Agent’s sole discretion. The Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by the Borrower is in respect of principal, interest, commitment
fees or any other Obligation then payable hereunder and under the other Loan Documents to more than
one Lender, to such Lenders for the account of their respective Applicable Lending Offices ratably
in accordance with the amounts of such respective Obligations then payable to such Lenders and (ii)
if such payment by the Borrower is in respect of any Obligation then payable hereunder to one
Lender, to such Lender for the account of its Applicable Lending Office, in each case to be applied
in accordance with the terms of this Agreement.




          (b) The Borrower hereby authorizes each Lender and each of its Affiliates, if and to the
extent payment owed to such Lender is not made when due hereunder or under the other Loan Documents
to charge from time to time, to the fullest extent permitted by law, against any or all of the
Borrower’s accounts with such Lender or such Affiliate any amount so due.




          (c) All computations of interest based on the Base Rate shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate or the Federal Funds Rate and of fees shall




36









 







be made by the Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day) occurring in the period
for which such interest, fees or commissions are payable. Each determination by the Administrative
Agent of an interest rate, fee or commission hereunder shall be conclusive and binding for all
purposes, absent manifest error.




          (d) Except as otherwise provided under the Loan Documents, whenever any payment hereunder or
under the other Loan Documents shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, fee or commission, as the case may be;
provided, however, that, if such extension would cause payment of interest on or principal of
Eurodollar Rate Loans to be made in the next following calendar month, such payment shall be made
on the preceding Business Day.




          (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to any Lender hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each such Lender on such due date an amount equal to
the amount then due such Lender. If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent, at the Federal Funds Rate.




          (f) If the Administrative Agent receives funds for application to the Obligations of the
Borrower under or in respect of the Loan Documents under circumstances for which the Loan Documents
do not specify to which, or the manner in which, such funds are to be applied, the Administrative
Agent may, if no instructions with respect thereto are received from the Lenders upon request, but
shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with
such Lender’s pro rata share of the aggregate principal amount of all Loans outstanding at such
time in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to
such Lender, as the Administrative Agent shall direct.




          SECTION 2.11. Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Administrative Agent hereunder or under any other Loan Document shall be made,
in accordance with Section 2.10 or the applicable provisions of such other Loan Document,
if any, free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding,
in the case of each Lender and the Administrative Agent, (x) taxes that are imposed on its overall
net income by the United States and taxes that are imposed on its overall net income (and franchise
taxes imposed in lieu thereof) by the state or foreign jurisdiction under the laws of which such
Lender or the Administrative Agent, as the case may be, is organized (or any political subdivision
thereof), has its Applicable Lending Office, has a permanent establishment or is engaged in
business (other than the business that the Lender is engaged in




37









 







solely by reason of the transactions contemplated by this Agreement), (y) any branch profits
taxes imposed by the United States of America and (z) withholding taxes imposed under law in effect
on the date hereof or at the time the Lender designates a new Applicable Lending Office, other than
any new Applicable Lending Office designated at the written request of the Borrower (in the case of
a Lender that is not an Initial Lender, this clause (z) shall include taxes imposed under
law in effect on the date such Lender becomes a Lender, except to the extent that the Lender’s
predecessor would have been entitled to receive additional amounts under this Section
2.11(a)) and, in the case of each Lender, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of such Lender’s
Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder
or under any other Loan Document being hereinafter referred to as “Taxes”). If the Borrower or the
Administrative Agent shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any other Loan Document to any Lender or the Administrative Agent, (i)
the sum payable by the Borrower shall be increased as may be necessary so that after the Borrower
and the Administrative Agent have made all required deductions (including deductions applicable to
additional sums payable under this Section 2.11) such Lender or the Administrative Agent,
as the case may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make all such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other authority in accordance
with applicable law.




          (b) In addition, the Borrower shall pay any present or future stamp, documentary, excise,
property (including intangible property, but with regard to all property taxes, only to the extent
relating to property of the Borrower) mortgage recording or similar taxes, charges or levies that
arise from any payment made by the Borrower hereunder or under any other Loan Documents or from the
execution, delivery or registration of, performance under this Agreement or the other Loan
Documents (hereinafter referred to as “Other Taxes”).




          (c) The Borrower shall indemnify each Lender and the Administrative Agent for and hold them
harmless against the full amount of Taxes and Other Taxes, and for the full amount of taxes of any
kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.11,
imposed on or paid by such Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.




          (d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing such payment, to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the other Loan Documents by or
on behalf of the Borrower through an account or branch outside the United States or by or on behalf
of the Borrower by a payor that is not a United States person, if the Borrower determines that no
Taxes are payable in respect thereof, the Borrower shall furnish, or shall




38









 







cause such payor to furnish, to the Administrative Agent, at such address, an opinion of
counsel acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of subsections (d) and (e) of this Section 2.11, the terms “United
States” and “United States person” shall have the meanings specified in Section 7701 of the
Internal Revenue Code.




          (e) Each Lender organized under the laws of a jurisdiction outside the United States shall, on
or prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in
the case of each other Lender, and from time to time thereafter as reasonably requested in writing
by the Borrower (but only so long thereafter as such Lender remains lawfully able to do so),
provide each of the Administrative Agent and the Borrower with two original Internal Revenue
Service Forms W-8BEN or W-8ECI or (in the case of a Lender that has certified in writing to the
Administrative Agent that it is not (i) a “bank” as defined in Section 881(c)(3)(A) of the Internal
Revenue Code), (ii) a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Borrower or (iii) a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue Code), Internal Revenue
Service Form W-8BEN, as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United
States withholding tax on payments pursuant to this Agreement or any other Loan Document or, in the
case of a Lender that has certified that it is not a “bank” as described above, certifying that
such Lender is a foreign corporation, partnership, estate or trust. As provided in Section
2.11(a), if the forms provided by a Lender at the time such Lender first becomes a party to
this Agreement indicate a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender
provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at
such lesser rate only shall be considered excluded from Taxes for periods governed by such forms;
provided, however, that if, at the effective date of the Assignment and Acceptance pursuant to
which a Lender becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) of this Section 2.11 in respect of United States withholding
tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender
assignee on such date. If any form or document referred to in this subsection (e) requires
the disclosure of information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W-8BEN or W-8ECI or the
related certificate described above, that the applicable Lender reasonably considers to be
confidential, such Lender shall give notice thereof to the Borrower and shall not be obligated to
include in such form or document such confidential information.




          (f) For any period with respect to which a Lender has failed to provide the Borrower with the
appropriate form, certificate or other document described in subsection (e) above (other
than if such failure is due to a change in law, or in the interpretation or application thereof,
occurring after the date on which a form, certificate or other document originally was required to
be provided or if such form, certificate or other document otherwise is not required under
subsection (e) above), such Lender shall not be entitled to indemnification under




39









 







subsection (a) or (c) of this Section 2.11 with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that should a Lender
become subject to Taxes because of its failure to deliver a form, certificate or other document
required hereunder, the Borrower shall take such steps as such Lender shall reasonably request, at
the Lender’s sole expense and as long as the Borrower determine that such steps will not, in the
reasonable judgment of the Borrower, be disadvantageous to the Borrower, to assist such Lender to
recover such Taxes.




          (g) Any Lender claiming any additional amounts payable pursuant to this Section 2.11
agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. In addition, if a Lender determines, in such Lender’s sole
discretion, that it has received a refund or credit in respect of any Taxes or Other Taxes as to
which it has been indemnified pursuant to Section 2.11(c), or with respect to which
additional amounts have been paid pursuant to Section 2.11(a), such Lender shall pay to the
Borrower an amount equal to such refund (but such amount in no event to exceed the amount of any
indemnity payments made, or additional amounts paid, by the Borrower under this Section
2.11 with respect to the Taxes or Other Taxes giving rise to such refund) net of all
out-of-pocket expenses of such Lender, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the
request of such Lender, shall agree to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender
in the event such Lender subsequently determines that such refund or credit is unavailable under
applicable law or is otherwise required to repay such refund to such Governmental Authority. This
paragraph shall not be construed to require a Lender to rearrange its tax affairs or to make
available its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.




          (h) The Administrative Agent shall deliver to the Borrower on the Effective Date (and shall
keep effective thereafter) two duly completed copies of Internal Revenue Service Form W-8IMY, or
any successor or other form prescribed by the Internal Revenue Service, certifying that it is a
“U.S. branch” and that the payments it receives for the account of others are not effectively
connected with the conduct of its trade or business in the United States and that it is using such
form as evidence of its agreement with the Borrower to be treated as a U.S. person with respect to
such payments (and the Borrower and the Administrative Agent agree to so treat the Administrative
Agent as a U.S. Person with respect to such payments), with the effect that the Borrower can make
payments to the Administrative Agent without deduction or withholding of any Taxes imposed by the
United States.




          SECTION 2.12. Sharing of Payments, Etc. If any Lender shall obtain at any time any
payment (whether voluntary, involuntary, through the exercise of any right of set-off, or
otherwise, other than as a result of an assignment pursuant to Section 8.07), (a) on
account of Obligations due and payable to such Lender hereunder and under the other Loan Documents
at such time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the




40









 







Obligations due and payable to all Lenders hereunder and under the other Loan Documents at
such time) of payments on account of the Obligations due and payable to all Lenders hereunder and
under the other Loan Documents at such time obtained by all the Lenders at such time or (b) on
account of Obligations owing (but not due and payable) to such Lender hereunder and under the other
Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender to (ii) the aggregate amount of the Obligations
owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such
time) of payments on account of the Obligations owing (but not due and payable) to all Lenders
hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such
time, such Lender shall forthwith purchase from the other Lenders such interests or participating
interests in the Obligations due and payable or owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each other Lender shall be rescinded and such other Lender shall repay to the
purchasing Lender the purchase price to the extent of such Lender’s ratable share (according to the
proportion of (i) the purchase price paid to such Lender to (ii) the aggregate purchase price paid
to all Lenders) of such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (i) the amount of such other Lender’s required repayment to (ii)
the total amount so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing an interest or participating interest from another Lender pursuant to
this Section 2.12 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such interest or participating interest,
as the case may be, as fully as if such Lender were the direct creditor of the Borrower in the
amount of such interest or participating interest, as the case may be.




          SECTION 2.13. Use of Proceeds. The proceeds of the Loans shall be available (and the
Borrower agrees that it shall use such proceeds) solely (i) to fund the Distribution and the Tender
Offer of the Borrower, (ii) to pay transaction fees and expenses and (iii) for general corporate
purposes.




          SECTION 2.14. Change of Control Prepayment. (a) No later than three (3) Business Days
after the occurrence of a Change of Control, the Borrower shall through the Administrative Agent
offer to each Lender (by delivery of a prepayment offer to the Administrative Agent) to prepay all
(but not part) of its outstanding Loans in accordance with this Section 2.14. The
prepayment offer may be conditioned on the occurrence of such Change of Control (if made prior to
such occurrence) and otherwise shall be irrevocable and shall state: (i) the proposed date of such
prepayment and/or return (which date shall be no earlier than (x) the end of the Offer Period and
(y) the date of the applicable Change of Control and no later than ten (10) Business Days from the
date of the applicable Change of Control); (ii) the prepayment price (which, with respect to each
Lender, shall be calculated as the sum of (A) the aggregate principal amount of the outstanding
Loans made by such Lender, (B) the greater of (x) an amount equal to 1.00% of the aggregate
principal amount of such outstanding Loans made by such Lender and (y) the Call Premium (if any),
(C) all accrued and unpaid interest on the principal amount being repaid, prepaid or returned and
(D) any amounts owing pursuant to




41









 







Section 8.04(c)); (iii) that each Lender that accepts such prepayment offer must
accept such offer with respect to all (but not part) of its Loans; (iv) that each Lender must
accept such offer by delivering notice of such acceptance to the Administrative Agent within ten
(10) days after the date the Borrower makes its offer to such Lender (the “Offer Period”); and (v)
in reasonable detail, the nature of the applicable Change of Control and the projected impact of
such Change of Control on the Projects, the operations thereof and BostonGen and its Subsidiaries.




          (b) The Borrower shall comply with the terms of each such prepayment offer. Each Lender shall
have the right to accept such offer prior to the expiration of the applicable Offer Period.




          (c) The Commitments of each Lender that accepts a prepayment offer in accordance with this
Section 2.14 shall terminate in its entirety on the date such Lender’s Loans are repaid or, if
later, scheduled to be repaid or returned.




          SECTION 2.15. Evidence of Debt. (a) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder. The Borrower
agrees that upon notice by any Lender to the Borrower (with a copy of such notice to the
Administrative Agent) to the effect that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Lender to evidence (whether for purposes of pledge,
enforcement or otherwise) the Loans owing to, or to be made by, such Lender, the Borrower shall
promptly execute and deliver to such Lender, with a copy to the Administrative Agent, a Note in
substantially the form of Exhibit A hereto, payable to the order of such Lender in a
principal amount equal to the Loans of such Lender. All references to Notes in the Loan Documents
shall mean Notes, if any, to the extent issued hereunder.




          (b) The Register maintained by the Administrative Agent pursuant to Section 8.07(e)
shall include a control account, and a subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of the Loans made hereunder, the Type of the
Loans and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each Lender hereunder
and (iv) the amount of any sum received by the Administrative Agent from the Borrower hereunder and
each Lender’s share thereof.




          (c) Entries made in good faith by the Administrative Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal and interest
due and payable or to become due and payable from the Borrower to, in the case of the Register,
each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent
manifest error; provided, however, that the failure of the Administrative Agent or such Lender to
make an entry, or any finding that an entry is incorrect, in the Register or such account or
accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement.




42









 








          SECTION 2.16. Duty to Mitigate. In the event that any Lender demands payment of costs
or additional amounts pursuant to Section 2.09 or 2.11 or asserts, pursuant to
Section 2.09(d), that it is unlawful for such Lender to make Eurodollar Rate Loans then
(subject to such Lender’s right to rescind such demand or assertion within 10 days after the notice
from the Borrower referred to below) the Borrower may, upon 20 days’ prior written notice to such
Lender and the Administrative Agent, elect to cause such Lender to assign its Loans and Commitments
in full to one or more Persons selected by the Borrower so long as (i) each such Person satisfies
the criteria of an Eligible Assignee and is reasonably satisfactory to the Administrative Agent,
(ii) such Lender receives payment in full in cash of the outstanding principal amount of all Loans
made by it and all accrued and unpaid interest thereon and all other amounts due and payable to
such Lender as of the date of such assignment (including, without limitation, amounts owing
pursuant to Sections 2.09, 2.11 and 8.04) and (iii) each such assignee
agrees to accept such assignment and to assume all obligations of such Lender hereunder in
accordance with Section 8.07.




ARTICLE III




CONDITIONS TO EFFECTIVENESS AND OF LENDING




          SECTION 3.01. Conditions Precedent. Section 2.01 of this Agreement shall
become effective on and as of the first date on or before December 21, 2006 (the “Effective Date”)
on which the following conditions precedent have been satisfied (and the obligation of each Lender
to make a Loan on the occasion of the Initial Extension of Credit hereunder is subject to the
satisfaction of such conditions precedent before or concurrently with the Effective Date):





     (a) The Administrative Agent shall have received on or before the Effective Date the
following, each dated as of such date (unless otherwise specified) and in form and substance
reasonably satisfactory to the Administrative Agent:




     (i) The Notes payable to the order of the Lenders to the extent requested by
the Lenders pursuant to the terms of Section 2.15.




     (ii) completed requests for information or similar search reports, dated on or
not more than 14 days before the Effective Date, listing all effective financing
statements filed in the State of Delaware and any other jurisdiction in which the
Borrower owns Property that names the Borrower as debtor, together with copies of
such other financing statements.




     (iii) Certified copies of the resolutions of the board of directors of the
Borrower approving the Transaction and each Transaction Document to which it is or
is to be a party, and of all documents evidencing other necessary corporate action
and governmental and other third party approvals and consents, if any, with respect
to the Transaction and each Transaction Document to which it is or is to be a party.



43









 






     (iv) A copy of a certificate of the Secretary of State of Delaware, dated
reasonably near the Effective Date certifying (A) as to a true and correct copy of
the certificate of formation of the Borrower and each amendment thereto on file in
such Secretary’s office and (B) that (1) such amendments are the only amendments to
the Borrower’s certificate of formation, as the case may be, on file in such
Secretary’s office, (2) to the extent applicable, the Borrower has paid all
franchise taxes to the date of such certificate and (3) the Borrower is duly formed
and in good standing or presently subsisting under the laws of the State of
Delaware.




     (v) A certificate of the Borrower signed on behalf of the Borrower by a
Responsible Officer, dated the Effective Date (the statements made in such
certificate shall be true on and as of the Effective Date), certifying as to (A) the
absence of any amendments to the certificate of formation of the Borrower since the
date of the Secretary of State’s certificate referred to in Section
3.01(a)(viii), (B) a true and correct copy of the limited liability company
agreement of the Borrower as in effect on the date on which the resolutions referred
to in Section 3.01(a)(vii) were adopted and on the Effective Date, (C) the
due formation and good standing or valid existence of the Borrower as a limited
liability company organized under the laws of the jurisdiction of its formation, and
the absence of any proceeding for the dissolution or liquidation of the Borrower and
(D) the truth in all material respects of the representations and warranties
contained in the Loan Documents as though made on and as of the Effective Date.




     (vi) A Certificate of the Borrower executed by a Responsible Officer thereof
certifying the name and true signature of each officer of the Borrower authorized to
sign each Transaction Document to which it is or is to be a party and the other
documents to be delivered hereunder and thereunder.




     (vii) Certified copies of each of the Related Documents, duly executed by each
of the parties thereto.




     (viii) Certificates in substantially the form of Exhibit D, attesting
to the Solvency of the Borrower and its Subsidiaries on a Consolidated basis after
giving effect to the Transactions and the other transactions contemplated hereby
from its director of finance.




     (ix) (A) A certified hard copy of, and a computer disk containing, pro forma
balance sheets, income statements and cash flow statements with respect to the
Borrower consolidated with its Subsidiaries for the period through Fiscal Year 2014,
on a quarterly basis for the period from January 1, 2007 through December 31, 2008
and on an annual basis for each year thereafter (the “Base Case Projections”) and
(B) a certified copy of the operating budget for BostonGen and its Subsidiaries for
Fiscal Year 2007 (the “Initial Operating Budget”).




     (x) (A) Certified copies of audited financial statements of the Borrower and
its Subsidiaries dated December 31, 2005 and interim financial



44









 







statements of the Borrower and its Subsidiaries dated the end of each Fiscal
Quarter ending since December 31, 2005 and (B) the Consolidated pro forma balance
sheet of the Borrower and its Subsidiaries as at September 30, 2006, and the related
Consolidated pro forma statement of income of the Borrower and its Subsidiaries for
the twelve-month period then ended.




     (xi) [Reserved].




     (xii) A favorable opinion of Debevoise & Plimpton LLP, counsel for the
Borrower, in form and substance reasonably satisfactory to the Administrative Agent.




     (xiii) A favorable opinion of White & Case LLP, special federal energy
regulatory counsel for the Borrower in form and substance reasonably satisfactory to
the Administrative Agent.




     (b) The Lender shall be reasonably satisfied that:




     (i) all Existing Debt, other than Surviving Debt, has been (or is
contemporaneously being) prepaid, redeemed or defeased in full or otherwise
satisfied and extinguished and all commitments relating thereto terminated (or
contemporaneously therewith terminated) and that all Surviving Debt is on terms and
conditions reasonably satisfactory to the Lender;




     (ii) all Liens securing payment of any Existing Debt shall have been released;
and




     (iii) the Administrative Agent shall have received all Uniform Commercial Code
Form UCC-3 termination statements, mortgage releases, pay-off letters and other
instruments as may be necessary or desirable, in the reasonable judgment of the
Administrative Agent, in connection therewith.




     (c) Before giving effect to the Transaction, there shall have occurred no Material
Adverse Change since December 31, 2005.




     (d) Except as set forth on Schedule 4.01(g), there shall exist no action, suit,
investigation, litigation or proceeding affecting the Borrower pending or threatened in
writing before any Governmental Authority that (i) could reasonably be expected to have a
Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability
of any Loan Document or the consummation of the Transaction.




     (e) All Governmental Authorizations and members, shareholder and third party consents
and approvals necessary in connection with the Transaction shall have been obtained (without
the imposition of any conditions that are not acceptable to the Lenders) and shall remain in
full force and effect.



45









 






     (f) The Borrower shall have paid (or shall be contemporaneously paying from the
proceeds of the Loans) all accrued fees of the Administrative Agent and the Lenders and all
accrued expenses of the Administrative Agent (including the accrued fees and expenses of
counsel to the Administrative Agent and local counsel to the Lenders).




     (g) The Administrative Agent shall have received evidence reasonably satisfactory to it
that prior to, or concurrently with, the making of the Initial Extension of Credit
hereunder, BostonGen shall have received not less than (i) $1,130,000,000 in gross cash,
commitments and proceeds from borrowings, $250,000,000 in letter of credit commitments and
$70,000,000 in revolving credit commitments, in each case, under the First Lien Credit
Agreement and (ii) $350,000,000 in gross cash proceeds from borrowings under the Second Lien
Credit Agreement.




     (h) The Related Documents shall have been executed and delivered by all parties thereto
and shall be effective, and all material obligations to be performed under any such
documents on or before the Effective Date shall have been performed.




     (i) The Lenders shall have received, to the extent requested, on or before the date
which is five (5) Business Days prior to the Effective Date, all documentation and other
information required by bank regulatory authorities under applicable “know your customer”
and anti-money laundering rules and regulations including the Patriot Act.




     (j) The Administrative Agent shall have received for the account of each Lender a
certificate signed by a Responsible Officer of the Borrower, dated the date hereof, stating
that:




     (i) the representations and warranties contained in each Loan Document are
correct in all material respects on and as of the Effective Date, before and after
giving effect to the initial Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and




     (ii) no Default has occurred and is continuing, or would result the initial
Borrowing or issuance or from the application of the proceeds therefrom.



          SECTION 3.02. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to
have consented to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender prior to the Effective Date specifying
its objection thereto and such Lender shall not have made available to the Administrative Agent
such Lender’s ratable portion of the initial Borrowing.




46









 








ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          SECTION 4.01. Representations and Warranties. The Borrower represents and warrants on
behalf of itself as of the date hereof as follows:





     (a) Organization. It (i) is a limited liability company duly organized,
validly existing and in good standing under the laws of the jurisdiction of its formation,
(ii) is duly qualified and in good standing as a limited liability company in each other
jurisdiction in which it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so qualify or be
licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all
requisite limited liability company power and authority (including, without limitation, all
material Governmental Authorizations) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.




     (b) Subsidiaries. Set forth on Schedule 4.01(b) hereto is a complete
and accurate list of the Borrower and each of its Subsidiaries. The copy of the certificate
of formation of the Borrower and each amendment thereto provided pursuant to Section
3.01(a)(iv) is a true and correct copy of each such document, each of which is valid and
in full force and effect.




     (c) Ownership Information. (i) Set forth on Schedule 4.01(c) hereto
is a complete and accurate list of all of the Subsidiaries of the Borrower, showing as of
the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number
of shares or membership interests (as applicable) of each class of its Equity Interests
authorized, and the number outstanding, on the date hereof and the percentage of each such
class of its Equity Interests owned (directly or indirectly) by the Borrower and the number
of shares or membership interests (as applicable) covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date hereof. (ii) All
of the outstanding Equity Interests in BostonGen have been validly issued, are fully paid
and non-assessable and are owned by the Borrower free and clear of all liens, except those
created under the First Lien Pledge Agreement, the Second Lien Pledge Agreement or Permitted
Liens.




     (d) Authorization; Non-Contravention. The execution, delivery and performance
by the Borrower of each Transaction Document to which it is or is to be a party, and the
consummation of the Transactions are within the Borrower’s limited liability company powers,
have been duly authorized by all necessary limited liability company action, and do not (i)
contravene the Borrower’s limited liability company agreement or other constituent
documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation
X of the Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award applicable to or binding on it, (iii) conflict
with or result in the breach of, or constitute a default or require any payment to be made
under, a Contractual Obligation of the Borrower (except to the extent such conflict, breach,
default or payment could not



47









 







reasonably be expected to have a Material Adverse Effect) or (iv) except for the Liens
created under the First Lien Pledge Agreement and the Second Lien Pledge Agreement, result
in or require the creation or imposition of any Lien upon or with respect to any of the
Properties of the Borrower. As of the Effective Date, the Borrower is not in violation of
any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument, the violation or breach of which could be reasonably likely to
have a Material Adverse Effect.




     (e) Consents and Approvals. No Governmental Authorization, and no notice to,
filing with, or consent or approval of any other third party is required for (A) the due
execution, delivery, recordation, filing or performance by the Borrower of any Transaction
Document to which it is or is to be a party, or for the consummation of the Transaction or
(B) the exercise by the Administrative Agent or any Lender of its rights under the Loan
Documents, except for (1) those authorizations, approvals, actions, notices and filings set
forth on Schedule 4.01(e), (I) all of which have been duly obtained, taken, given or
made, (II) are in full force and effect, (III) are free from conditions or requirements that
have not been met or complied with, (2) authorizations, approvals, actions, notices and
filings required by securities, regulatory or applicable law in connection with an exercise
of remedies or (3) those Governmental Authorizations, notices, filings with, or consents of,
any other third party, the failure of which to obtain and maintain could not reasonably be
expected to result in a Material Adverse Effect.




     (f) Binding Agreement. This Agreement has been, and each other Transaction
Document when delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each other Transaction Document when delivered hereunder
will be, the legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.




     (g) Litigation. Except as set forth on Schedule 4.01(g), there is no
action, suit, investigation, litigation or proceeding affecting the Borrower or any of its
Subsidiaries, including any Environmental Action, pending or threatened in writing before
any Governmental Authority or arbitrator that (i) could reasonably be likely to have a
Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability
of any Loan Document or the consummation of the Transaction.




     (h) Financial Statements. (i) The Consolidated balance sheet of the Borrower
and its Subsidiaries as of December 31, 2005, the related Consolidated statement of income
and Consolidated statement of cash flows of the Borrower and its Subsidiaries for the Fiscal
Year then ended and the Consolidated balance sheet of the Borrower and its Subsidiaries as
at September 30, 2006, and the related Consolidated statement of income and Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the nine months then ended,
duly certified by the director of finance of the Borrower, copies of which have been
furnished to the Administrative Agent pursuant to Section 3.01, fairly present in
all material respects, subject, in the case of said balance sheet as at September 30, 2006,
and said statements of income and cash flows for the nine months then ended,



48









 







to year end audit adjustments, the Consolidated financial condition of the Borrower and
its Subsidiaries as at such dates and the Consolidated results of operations of the Borrower
and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP
applied on a consistent basis.




     (ii) The Consolidated pro forma balance sheet of the Borrower and its Subsidiaries as
at September 30, 2006, and the related Consolidated pro forma statement of income of the
Borrower and its Subsidiaries for the twelve-month period then ended, respectively,
certified by the director of finance of the Borrower, copies of which have been furnished to
the Administrative Agent pursuant to Section 3.01, fairly present in all material
respects the Consolidated pro forma financial condition of the Borrower and its Subsidiaries
as at such dates and the Consolidated pro forma results of operations of the Borrower and
its Subsidiaries for the period ended on such date giving effect to the Transaction, all in
accordance with GAAP.




     (iii) The Consolidated forecasted balance sheet, statement of income and statement of
cash flows of the Borrower and its Subsidiaries delivered to the Administrative Agent,
pursuant to Section 3.01(a)(ix) were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were reasonable at the time of delivery of
such forecasts, and represented, at the time of delivery, the Borrower’s reasonable best
estimate of its future financial performance.




     (i) Accuracy of Information; Projections. All information (other than the
information delivered pursuant to Section 3.01(a)(ix), other financial projections
and general economic information) heretofore or contemporaneously furnished to any Lender by
or on behalf of the Borrower in connection with any Loan Document or any transaction
contemplated hereby (including the Transactions), taken together as a whole with all other
information with which such Lender has previously been furnished, is complete and correct in
all material respects, as of the date such information was furnished and as of the Effective
Date, and did not contain any untrue statement of a material fact or omit to state any
material fact necessary to make any information not misleading in light of the circumstances
under which furnished.




     (j) Margin Stock. The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Loan
will be used to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock.




     (k) Investment Company Act. The Borrower is not an “investment company,” as
defined in or subject to regulations under the Investment Company Act of 1940, as amended.




     (l) Solvency. After giving affect to the Transaction, the Borrower and its
Subsidiaries are, on a Consolidated basis, Solvent.



49









 






     (m) ERISA Etc. (i) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that has had or is reasonably expected to have a Material
Adverse Effect.




     (ii) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably
expected to incur any Withdrawal Liability to any Multiemployer Plan except for Withdrawal
Liability that could not reasonably be expected to have a Material Adverse Effect.




     (iii) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of
a material Multiemployer Plan that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, within the meaning of Title
IV of ERISA.




     (n) Environmental Matters. (i) Except as otherwise set forth on Part I of
Schedule 4.01(o) hereto, the operations and properties of the Borrower and each of
its Subsidiaries comply with all applicable Environmental Laws and Environmental Permits,
all past non-compliance with such Environmental Laws and Environmental Permits has been
resolved without ongoing obligations or costs, except for any such noncompliance, obligation
or cost that could not reasonably be likely to have a Material Adverse Effect and, to the
best knowledge of the Borrower, no circumstances exist that could (A) form the basis of an
Environmental Action against the Borrower or any of its Subsidiaries or any of their
properties that could reasonably be likely to have a Material Adverse Effect or (B) cause
any such property to be subject to any restrictions on ownership or transferability, or
subject to any material Lien, under any Environmental Law.




     (ii) Except as otherwise set forth on Part II of Schedule 4.01(o) hereto, none
of the properties currently or formerly owned or operated by the Borrower or any of its
Subsidiaries is currently listed or proposed for listing on the NPL or on the CERCLIS or any
analogous state or local list; there are no and never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons
in which Hazardous Materials are being or have been treated, stored or disposed on any
property currently owned or operated by the Borrower or any of its Subsidiaries except where
such treatment, storage or disposal could not reasonably be likely to have a Material
Adverse Effect; there is no asbestos or asbestos-containing material on any property
currently owned or operated by the Borrower or any of its Subsidiaries that requires
abatement under any applicable Environmental Law that could reasonably be likely to have a
Material Adverse Effect; and Hazardous Materials have not been released, discharged or
disposed of on any property currently or formerly owned or operated by the Borrower or any
of its Subsidiaries in a manner that would reasonably be expected to require any
investigation, cleanup, remediation or remedial action by the Borrower under any applicable
Environmental Law that could reasonably be likely to have a Material Adverse Effect.




     (iii) Except as otherwise set forth on Part III of Schedule 4.01(o) hereto,
neither the Borrower nor any of its Subsidiaries is undertaking, and has not completed,



50









 







either individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of any governmental or regulatory
authority or the requirements of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by the Borrower or any of its Subsidiaries have been
disposed of in a manner not reasonably expected to result in liability to the Borrower or
any of its Subsidiaries, except, in each case above, where any such investigation or
assessment or remedial or response action or liability could not reasonably be likely to
have a Material Adverse Effect.




     (o) Tax Matters. (i) Neither the Borrower nor any of its Subsidiaries is
party to any tax sharing agreement.




     (ii) The Borrower and each of its Subsidiaries has filed, has caused to be filed or has
been included in all tax returns (Federal, state, local and foreign) required to be filed,
other than those tax returns where the failure to file such returns could not be reasonably
expected to have a Material Adverse Effect, and has paid all taxes shown thereon to be due,
together with applicable interest and penalties (other than taxes contested in good faith).




     (iii) No issues have been raised by the Internal Revenue Service in respect of federal
income tax returns for years for which the expiration of the applicable statute of
limitations has not occurred by reason of extension or otherwise that, in the aggregate,
could be reasonably likely to have a Material Adverse Effect.




     (iv) No issues have been raised by any state, local or foreign taxing authorities, in
respect of the returns for years for which the expiration of the applicable statute of
limitations has not occurred by reason of extension or otherwise, that, in the aggregate,
could be reasonably likely to have a Material Adverse Effect.




     (p) Debt. Except as otherwise set forth on Schedule 4.01(p) (“Existing
Debt”), the Borrower has no Debt other than Debt under this Agreement.




     (q) Regulatory Approvals. Except for any FERC approvals required in connection
with the Secured Parties’ (as defined in the Intercreditor Agreement) exercise of remedies
under the Financing Documents, no approvals or authorizations from FERC are required to be
obtained by the Borrower, its Subsidiaries or the Lenders with respect to the Transaction.




     (r) Existing Regulatory Orders. The Borrower and each of its Subsidiaries are
in full compliance in all material respects with the terms and conditions of all orders
issued by FERC under Section 203 of the FPA and obtained by the Borrower or any such
Subsidiary.



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     (s) PUHCA. The Borrower is a “holding company” within the meaning of Section
1262(8) of PUHCA solely with respect to its ownership of one or more EWGs, and is not
subject to or is otherwise exempt from regulation under PUHCA except for regulation under
Section 1265 of PUHCA.




     (t) Violation of Law. The Borrower is not in violation of any applicable law,
rule, regulation, order, writ, judgment, injunction, decree, determination or award binding
on it, the violation or breach of which could be reasonably likely to have a Material
Adverse Effect.



ARTICLE V




COVENANTS




          SECTION 5.01. Affirmative Covenants. Until a Repayment Event has occurred, the
Borrower will:





     (a) Compliance with Laws, Etc. Comply with all applicable laws, rules,
regulations and orders binding on it, such compliance to include, without limitation,
compliance with ERISA and the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970, other than any such non-compliance which could not
reasonably be expected to have a Material Adverse Effect.




     (b) Payment of Taxes, Etc. Pay and discharge before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien
upon its property (unless, in the case of (i) and (ii), the failure to do so could not
reasonably be expected to have a Material Adverse Effect); provided, however, that the
Borrower shall not be required to pay or discharge any such tax, assessment, charge or claim
that is being contested in good faith and by proper proceedings and only to the extent that
adequate reserves are being maintained.




     (c) Preservation of Existence, Etc. Preserve and maintain its existence as a
limited liability company and its good standing in the State of Delaware.




     (d) Visitation Rights. Upon reasonable advance notice, at any reasonable time
following the occurrence and continuance of an Event of Default, permit the Administrative
Agent or any of the Lenders, or any agents or representatives thereof (at the sole expense
of the Administrative Agent, Lender, agent or representative) to examine and make copies of
and abstracts from the records and books of account of the Borrower and to discuss the
finances and accounts of the Borrower with its certified public accountants.




     (e) Keeping of Books. Keep proper books and records and in accordance with
GAAP.



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     (f) Separateness. Comply with the following:




     (i) The Borrower will act solely in its name and through its duly authorized officers,
managers, representatives or agents in the conduct of its businesses;




     (ii) The Borrower will conduct in all material respects its business solely in its own
name, in a manner not misleading to other Persons as to its identity (without limiting the
generality of the foregoing, all oral and written communications (if any), including
invoices, purchase orders, and contracts);




     (iii) The Borrower will obtain proper authorization from member(s), shareholder(s),
director(s) and manager(s), as required by its limited liability company agreement or bylaws
for all of its limited liability company or corporate actions; and




     (iv) Each of the Borrower and its Subsidiaries will comply in all material respects
with the terms of its certificate of incorporation or formation and by-laws or limited
liability company agreement (or similar constituent documents).



          SECTION 5.02. Negative Covenants. Until a Repayment Event has occurred, the Borrower
will not, at any time:





     (a) Liens, Etc. Create, incur, assume or suffer to exist any Lien on or with
respect to any of its properties of any character (including, without limitation, accounts)
whether now owned or hereafter acquired or assign any accounts or other right to receive
income, except:




     (i) Permitted Liens;




     (ii) Liens arising by virtue of any statutory or common law provision relating
to banker’s liens, rights of set-off or similar rights; and




     (iii) Liens under the First Lien Pledge Agreement and the Second Lien Pledge
Agreement and Liens under pledge agreements in respect of a Refinancing of Debt of
BostonGen permitted hereunder and under the Related Documents.




     (b) Debt. Create, incur, assume or suffer to exist any Debt, except Permitted
Debt.




     (c) Change in Nature of Business. Engage in any business other than holding
the Equity Interests in BostonGen and activities reasonably incidental thereto or in
connection with any Permitted Development.




     (d) Mergers, Etc. The Borrower shall not consolidate or merge with or into
(whether or not the Borrower is the surviving corporation), in one or more related
transactions, any other Person unless (i) (1) the Borrower is the surviving corporation or
(2) the entity or the Person formed by or surviving any such consolidation or merger (if
other than the Borrower) (the entity or Person described in this clause (2), the
“Successor Company”) is a corporation, partnership, limited liability company or
trust organized or



53









 







existing under the laws of the United States or any State thereof, (ii) immediately
after giving effect to such transaction no Default or Event of Default shall occur or be
continuing and no Default or Event of Default, in each case, under (and as defined in) the
Related Documents and the Financing Documents referred to therein shall have occurred and be
continuing, (iii) immediately after giving effect to such transaction, the Borrower or the
Successor Company shall own all of the Equity Interests of BostonGen, (iv) such other Person
is a Qualified Owner, (v) each of S&P and Moody’s shall have provided written confirmation
of their respective ratings of the Debt under the BostonGen Facilities (as in effect
immediately prior to such consolidation or merger) after giving effect to such consolidation
or merger and (vi) the Successor Company assumes all of the obligations of the Borrower
under the Notes and this Agreement pursuant to an amendment or supplement to this Agreement
and each other instrument, document or agreement entered into by the Borrower in connection
therewith, in each case, in a form reasonably satisfactory to the Administrative Agent.




     (e) Sales of Assets, Etc.




     (i) sell, lease, transfer or otherwise dispose of its Equity Interests in
BostonGen or its Subsidiaries (other than the Liens permitted pursuant to
Section 5.02(a)(iii));




     (ii) permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of any assets of such Subsidiary, except Permitted Subsidiary Asset Sales;




     (iii) sell, lease, transfer or otherwise dispose of any other assets of the
Borrower;




     (iv) grant any option or other right to purchase, lease or otherwise acquire
any assets referred to in clause (i) or (iii) above (unless such
option or right is conditioned upon compliance with all obligations of the Borrower
and its Subsidiaries under the Loan Documents, the Related Documents and the
Financing Documents referred to therein);




except, in any case:




     (A) the liquidation, sale or use of Cash and Cash Equivalents; and




     (B) Events of Eminent Domain or Casualty Events (as such terms are
defined in the Security Deposit Agreement) are deemed not to constitute
sales, leases, transfers or other dispositions of Property for purposes of
this Section 5.02(e).



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     (f) Investments in Other Persons. Make or hold any Investment in any Person,
except:




     (i) Investments by the Borrower from time to time in the Equity Interests of
Persons who are its Subsidiaries on the Effective Date;




     (ii) Investments by the Borrower in Cash and Cash Equivalents;




     (iii) Investments indirectly by the Borrower in Permitted Developments made
solely with the proceeds of capital contributions to the Borrower from the holders
of its Equity Interests (or sales of equity securities of the Borrower) not to
exceed (when together with the aggregate amount of Debt incurred by BostonGen and
its Subsidiaries in connection with a Permitted Development) in the aggregate
$140,000,000;




     (iv) Investments individually by the Borrower in any other Subsidiary permitted
pursuant to Section 5.02(j) in an aggregate amount not to exceed $5,000,000;
and




     (v) any other investments in an aggregate amount not to exceed $500,000 at any
time.




     (g) Restricted Payments. Except in connection with the Tender Offer and the
Distribution, declare or pay any dividends, purchase, redeem, retire, defease or otherwise
acquire for value any of its Equity Interests now or hereafter outstanding, return any
capital to its stockholders, partners or members (or the equivalent Persons thereof) as
such, make any distribution of assets, Equity Interests, obligations or securities to its
stockholders, partners or members (or the equivalent Persons thereof) as such or permit any
of its Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any
Equity Interests in the Borrower, except that any Subsidiary of the Borrower may declare and
pay cash dividends to the Borrower or to any Subsidiary of the Borrower of which it is a
Subsidiary, except:




     (i) in connection with the issuance of Equity Interests of the Borrower and
contemporaneous purchase of its Equity Interests (for consideration consisting of
Cash and/or Equity Interests) from existing unitholders in a transaction (including
by way of merger permitted pursuant to Section 5.02(d)) in which any
“person” or “group” (within the meaning of Rules 13(d) of the Exchange Act and the
rules of the Securities and Exchange Commission thereunder as in effect on the
Effective Date) (other than any such “person” or “group” holding, directly or
indirectly, beneficially or of record, any Equity Interests in the Borrower as of
the Auction Date) (the “Proposed Acquiror”) acquires ownership, directly or
indirectly, beneficially or of record, of more than 35% on a fully diluted basis of
the aggregate voting power represented by the issued and outstanding Equity
Interests in the Borrower; provided that (A) such Proposed Acquiror is a Qualified
Owner (B) each of S&P and Moody’s shall have provided written confirmation of their
respective ratings of the Debt under the



55









 







BostonGen Facilities (as in effect immediately prior to such acquisition) after
giving effect to such acquisition and (C) immediately after giving effect to such
issuance or sale of Equity Interests no Default or Event of Default shall have
occurred and be continuing and no Default or Event of Default, in each case, under
(and as defined in) the Related Documents and the Financing Documents shall have
occurred and be continuing;




     (ii) the purchase, redemption, or acquisition for value of any of its Equity
Interests (other than unit appreciation rights) from its existing unitholders and
holders of warrants of the Borrower as of the Effective Date in an aggregate amount
not to exceed $25,000,000; and




     (iii) the purchase of unit appreciation rights of directors not to exceed
$1,000,000 for each Fiscal Year that has elapsed since the Effective Date.




     (h) Amendments of Constitutive Documents. Amend its limited liability company
agreement, bylaws or other constitutive documents other than amendments that could not be
reasonably expected to have a Material Adverse Effect.




     (i) Accounting Changes. Make or permit any change in accounting policies or
reporting practices, except as permitted by GAAP.




     (j) Partnerships; Formation of Subsidiaries, Etc. (i) Become a general partner
in any general or limited partnership or joint venture or (ii) organize any new Subsidiary
(other than Subsidiaries of BostonGen permitted under the First Lien Credit Agreement).




     (k) Regulatory Matters. Make or permit to be made any change in the ownership
of it or its Subsidiaries without first obtaining any necessary authorization under Section
203 of the FPA.




     (l) Transactions with Affiliates. Borrower will not enter into or cause or
permit to exist any arrangement, transaction or contract (including for the purchase, lease
or exchange of property or the rendering of services) with any of its other Affiliates,
unless such arrangement, transaction or contract is:




     (i) (A) on fair and reasonable terms no less favorable to the Borrower than it
could obtain in an arm’s-length transaction with a Person that is not an Affiliate
and (B) of the kind which would be entered into by a prudent Person in the position
of the Borrower with a Person that is not one of its Affiliates;




     (ii) an arrangement, transaction or contract expressly permitted by the terms
of this Agreement;




     (iii) the payment of fees (including any payments in respect of unit
appreciation rights permitted pursuant to Section 5.02(g)(iii)) and
indemnities to directors, officers, consultants and employees of the Borrower in the
ordinary course of business;



56









 






     (iv) pursuant to the Management and Operation Agreements (if any), including
the payment of fees, costs and expenses as required thereunder (as of the date
hereof); or




     (v) the payment of fees, expenses, bonuses and awards related to the
Transactions contemplated by the Transaction Documents and Loan Documents to the
extent, in the case of the Transaction Documents, written notice thereof has been
provided to the Administrative Agent prior to the Effective Date.



          SECTION 5.03. Reporting Requirements. Until a Repayment Event has occurred, the Borrower
will furnish to the Administrative Agent (who will then circulate to the Lenders):





     (a) Default Notice. As soon as possible and in any event within five days
after the Borrower obtains knowledge thereof, the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse Effect continuing on
the date of such statement, a statement of a Responsible Officer of the Borrower setting
forth details of such Default and the action that the Borrower has taken and proposes to
take with respect thereto.




     (b) Annual Financials. As soon as available and in any event within 120 days
after the end of each Fiscal Year (but, in the case of the 2006 Fiscal Year, 150 days after
the end of such Fiscal Year), a copy of the annual audit report for such year for the
Borrower and its Subsidiaries, including therein a Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and a Consolidated statement
of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries
for such Fiscal Year, in each case accompanied by (i) an opinion as to such audit report of
KPMG LLP or other independent public accountants of recognized standing acceptable to the
Administrative Agent and (ii) a certificate of the director of finance of the Borrower (A)
certifying such financial statements as having been prepared in accordance with GAAP and (B)
stating that no Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that the Borrower has taken
and proposes to take with respect thereto; provided that, in the event of any change in
generally accepted accounting principles used in the preparation of such financial
statements, the Borrower shall also provide a reconciliation of such financial statements to
GAAP.




     (c) Quarterly Financials. As soon as available and in any event within 60 days
after the end of each of the first three quarters of each Fiscal Year, a Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and a
Consolidated statement of income and a Consolidated statement of cash flows of the Borrower
and its Subsidiaries for the period commencing at the end of the previous Fiscal Quarter and
ending with the end of such Fiscal Quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding figures for the
corresponding date or period of the preceding Fiscal Year, all in reasonable detail



57









 







and duly certified (subject to normal year-end audit adjustments) by the director of
finance of the Borrower as having been prepared in accordance with GAAP, together with a
certificate of said officer stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto; provided that, in the
event of any change in generally accepted accounting principles used in the preparation of
such financial statements, the Borrower shall also provide a reconciliation of such
financial statements to GAAP.




     (d) [Reserved].




     (e) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, litigation and proceedings before any Governmental Authority of the type
described in Section 4.01(g).




     (f) ERISA.




     (i) ERISA Events and ERISA Reports. (A) Promptly and in any event within 10
Business Days after the Borrower or any ERISA Affiliate knows or has reason to know that any
ERISA Event has occurred that could reasonably be expected to result in liability in excess
of $10,000,000, a statement of a Responsible Officer of the Borrower describing such ERISA
Event and the action, if any, that the Borrower or such ERISA Affiliate has taken and
proposes to take with respect thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010
of ERISA, a copy of such records, documents and information within 10 Business Days.




     (ii) Plan Terminations. Promptly and in any event within ten Business Days
after receipt thereof by the Borrower or any ERISA Affiliate, copies of each notice from the
PBGC stating its intention to terminate any Plan or to have a trustee appointed to
administer any Plan.




     (iii) Multiemployer Plan Notices. Promptly and in any event within ten
Business Days after receipt thereof by the Borrower or any ERISA Affiliate from the sponsor
of a Multiemployer Plan, copies of each notice concerning (A) the imposition of Withdrawal
Liability that could reasonably be expected to result in liability in excess of $10,000,000
by any such Multiemployer Plan, (B) the reorganization or termination, within the meaning of
Title IV of ERISA, of any such Multiemployer Plan that could reasonably be expected to
result in liability in excess of $10,000,000 or (C) the amount of liability incurred, or
that may be incurred, by the Borrower or any ERISA Affiliate in connection with any event
described in clause (A) or (B).



58









 





ARTICLE VI




EVENTS OF DEFAULT




          SECTION 6.01. Events of Default. Each of the following events or occurrences
described in this Article shall constitute an “Event of Default”.





     (a) Payment Defaults. (i) the Borrower shall fail to pay any principal of any
Loan when the same shall become due and payable or (ii) the Borrower shall fail to make any
other payment under any Loan Document, in each case under this clause (a) within ten
Business Days after the same shall become due and payable.




     (b) Misrepresentation. any representation or warranty made by the Borrower (or
any of its officers) under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made; provided, however, that if (i) the Borrower was
not aware that such representation or warranty was false or incorrect at the time such
representation or warranty was made, (ii) the fact, event or circumstance resulting in such
false or incorrect representation or warranty is capable of being cured, corrected or
otherwise remedied and (iii) such fact, event or circumstance resulting in such false or
incorrect representation or warranty shall have been cured, corrected or otherwise remedied,
within 30 days from the date on which the Borrower or any officer thereof first obtains
knowledge thereof such that such incorrect or false representation or warranty (as cured,
corrected or remedied) could not reasonably be expected to result in a Material Adverse
Effect, then such incorrect or false representation or warranty shall not constitute a
Default or Event of Default.




     (c) Certain Covenants. the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Sections 2.13, 5.01(c), 5.02 or
5.03(a) and such default shall continue unremedied for a period of 30 days after the
earlier of the date on which (x) any Responsible Officer of the Borrower becomes aware of
such failure or (y) written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender.




     (d) Other Covenants. the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 60 days after the earlier of the date
on which written notice thereof shall have been given to the Borrower by the Administrative
Agent or any Lender.




     (e) Cross Default. the Borrower shall fail to pay any principal of, premium or
interest on or any other amount payable in respect of any Debt of the Borrower that is
outstanding in a principal amount of at least $25,000,000 either individually or in the
aggregate for the Borrower (but excluding Debt outstanding under this Agreement), when the
same becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or



59









 







instrument relating to any such Debt and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to mature; or any
such Debt shall be declared to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof.




     (f) Insolvency Event. the Borrower or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower or any such Subsidiary seeking to
adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other similar
official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being diligently
contested by it in good faith, either such proceeding shall remain undismissed or unstayed
for a period of 60 days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or any substantial part of its
property) shall occur; or the Borrower or any of its Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this subsection (f).




     (g) Judgments. any final judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $25,000,000 shall be rendered against the
Borrower by one or more Governmental Authorities, arbitral tribunals or other bodies having
jurisdiction against the Borrower which remains unsatisfied and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or order or (ii)
there shall be any period of 60 consecutive days during which a stay of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect.




     (h) Non-Monetary Judgments. any non-monetary judgment or order shall be
rendered against the Borrower that could reasonably be expected to have a Material Adverse
Effect, and there shall be any period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect.




     (i) Invalidity. any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 shall for any reason cease to be valid and binding on or
enforceable against the Borrower to it, or the Borrower shall so state in writing.




     (j) ERISA. (i) any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of the



60









 







Insufficiency of such Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or the liability of the
Borrower and the ERISA Affiliates related to such ERISA Event) that could reasonably be
expected to have a Material Adverse Effect.




     (ii) the Borrower or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in
an amount that, when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Borrower and the ERISA Affiliates as Withdrawal Liability (determined as of the
date of such notification), that could reasonably be expected to have a Material Adverse
Effect.




     (iii) the Borrower or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the ERISA Affiliates to
all Multiemployer Plans that are then in reorganization or being terminated have been or
will be increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount that could reasonably be expected to have
a Material Adverse Effect.



          SECTION 6.02. Action if Insolvency. In the event of an actual or deemed entry of an
order for relief with respect to the Borrower or any of its Subsidiaries under the Federal
Bankruptcy Code, (x) the Commitments of each Lender and the obligation of each Lender to make Loans
shall automatically be terminated and (y) the Loans, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower.




          SECTION 6.03. Action if Other Event of Default. (a) If any Event of Default specified
in Sections 6.01(a), (c) (other than with respect to the breach of covenants set
forth in Section 5.02(i)), (d) (other than with respect to the breach of covenants
set forth in Section 5.01(a), (d) and (e) and Sections 5.03(b),
(c), (e) and (f)), (g), (i) or (j) shall occur for
any reason, whether voluntary or involuntary, and be continuing, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender and the obligation of each Lender to make Loans and (ii)
shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Loans, all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Loans, all such interest and
all such amounts shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived by the Borrower.




          (b) If prior to a BostonGen Repayment Event any event shall occur or condition shall exist
under any agreement or instrument relating to any Debt under the First Lien Credit Agreement or the
Second Lien Credit Agreement (or, in each case, any Refinancing thereof permitted by this Agreement
and the Related Documents) and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such




61









 







event or condition is to accelerate the
maturity of such Debt or otherwise to cause such Debt to mature; or any such Debt shall be declared
to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased in each case prior to the stated maturity
thereof and if any Event of Default specified in Section 6.01(b), (c) (with respect
to a breach of the covenant set forth in Section 5.02(i)), (d) (other than with
respect to the breach of covenants set forth in Section 5.01(d) or (e) or
Sections 5.03(b), (c), (e) and (f)) shall occur for any reason,
whether voluntary or involuntary, and be continuing, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the
Commitments of each Lender and the obligation of each Lender to make Loans and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the
Loans, all interest thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Loans, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the Borrower.



(c) If after a BostonGen Repayment Event, any Event of Default specified in Section
6.01(d), (e) or (h) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Commitments of each Lender
and the obligation of each Lender to make Loans and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Loans, all interest
thereon and all other amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Loans, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower.




ARTICLE VII




THE AGENTS




          SECTION 7.01. Authorization and Action. (a) Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers and discretion as
are reasonably incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the Obligations of the
Borrower), the Administrative Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that
the Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to this Agreement or applicable law.




          (b) The Administrative Agent may execute any of its duties under this Agreement or any other
Loan Document by or through agents, employees or attorneys-in-fact




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and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agent,
employee or attorney-in-fact that it selects in accordance with the foregoing provisions of this
Section 7.01(b) in the absence of the Administrative Agent’s gross negligence or willful
misconduct.




          SECTION 7.02. Administrative Agent’s Reliance, Etc. Neither the Administrative Agent
nor any of its directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan Documents, except for its or
their own gross negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and shall not be liable
for any action taken or omitted to be taken in good faith by it in accordance with the advice of
such counsel, accountants or experts; (b) makes no warranty or representation to any Lender and
shall not be responsible to any Lender for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (c) shall not have any duty to
ascertain or to inquire as to the performance, observance or satisfaction of any of the terms,
covenants or conditions of any Loan Document on the part of the Borrower or the existence at any
time of any Default under the Loan Documents or to inspect the property (including the books and
records) of the Borrower; (d) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant thereto; and (e)
shall incur no liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram, telecopy or
electronic communication) believed by it to be genuine and signed or sent by the proper party or
parties.




          SECTION 7.03. Initial Banks and Affiliates. With respect to its Commitments, the
Loans made by it and any Notes issued to it, each Initial Bank shall have the same rights and
powers under the Loan Documents as any other Lender and may exercise the same as though each were
not an Administrative Agent; and the term “Lenders” or “Lender” shall, unless otherwise expressly
indicated, include each Initial Bank in their respective individual capacities. Each Initial Bank
and their respective affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage in any kind of
business with, the Borrower, any of its Subsidiaries and any Person that may do business with or
own securities of the Borrower or any such Subsidiary, all as if such Initial Bank was not an
Administrative Agent and without any duty to account therefor to the Lenders. No Initial Bank
shall have any duty to disclose any information obtained or received by it or any of its Affiliates
relating to the Borrower or any of its Subsidiaries to the extent such information was obtained or
received in any capacity other than as such Initial Bank.




          SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other Lender and based on
the financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into




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this Agreement. Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement.




          SECTION 7.05. Indemnification. Each Lender severally agrees to indemnify the
Administrative Agent (to the extent not promptly reimbursed by the Borrower) from and against such
Lender’s ratable share (determined as provided below) of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative
Agent in any way relating to or arising out of the Loan Documents or any action taken or omitted by
such Administrative Agent under the Loan Documents (collectively, the “Indemnified Costs”);
provided, however, that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent’s gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing,
each Lender agrees to reimburse the Administrative Agent promptly upon demand for its ratable share
of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by
the Borrower under Section 8.04, to the extent that the Administrative Agent is not
promptly reimbursed for such costs and expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies
whether any such investigation, litigation or proceeding is brought by any Lender or any other
Person.




          SECTION 7.06. Successor Administrative Agent. The Administrative Agent may resign at
any time by giving 30 days’ written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor Administrative Agent as
to such of the Facilities as to which the Administrative Agent has resigned or been removed. If no
successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of
notice of resignation or the Required Lenders’ removal of the retiring Administrative Agent, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative
Agent, which shall be a commercial bank organized under the laws of the United States or of any
State thereof and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under the Loan Documents.
If within 45 days after written notice is given of the retiring Administrative Agent’s resignation
or removal under this Section 7.06 no successor Administrative Agent shall have been
appointed and shall have
accepted such appointment, then on such 45th day (a) the retiring Administrative Agent’s
resignation or removal shall become effective, (b) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents and (c) the
Required Lenders shall thereafter perform all duties of the retiring Administrative Agent under




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the Loan Documents until such time, if any, as the Required Lenders appoint a successor Administrative
Agent as provided above. After any retiring Administrative Agent’s resignation or removal
hereunder as Administrative Agent shall have become effective, the provisions of this Article
VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent under this Agreement.




ARTICLE VIII




MISCELLANEOUS




          SECTION 8.01. Amendments, Etc. (a) Subject to clause (b) below, no amendment
or waiver of any provision of this Agreement, the Notes or any other Loan Document, nor consent to
any departure by the Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Borrower and the Required Lenders (or the Administrative Agent on
their behalf), and then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that




     (i) no amendment, waiver or consent shall, unless in writing and signed by the Borrower and
all of the Lenders, do any of the following at any time:




     (A) waive any of the conditions specified in Section 3.01;




     (B) change (A) the definition of “Required Lenders” or (B) the number of Lenders or the
percentage of the aggregate unpaid principal amount of the Loans shall be required for the
Lenders or any of them to take any action hereunder or under any other Loan Document; or




     (C) amend this Section 8.01; and



     (ii) no amendment, waiver or consent shall, unless in writing and signed by the Borrower and
the Required Lenders and each Lender specified below for such amendment, waiver or consent:




     (A) reduce the principal of, or stated rate of interest on, the Loans owed to a Lender
or any fees or other amounts stated to be payable hereunder or under the other Loan
Documents to such Lender without the consent of such Lender;




     (B) postpone any date scheduled for any payment of principal of, or interest on, the
Loans pursuant to Section 2.04 or 2.07 or any date fixed for any payment of
fees hereunder in each case payable to a Lender without the consent of such Lender;




     (C) impose any restrictions on the rights of such Lender under Section 8.07; or




     (D) change the order of application of any prepayment of Loans from the application
thereof set forth in the applicable provisions of Section 2.06 in any manner



65









 







that
materially adversely affects the Lenders without the consent of holders of a majority of the
Loans outstanding hereunder;


provided further that no amendment, waiver or consent shall, unless in writing and signed by the
Borrower and the Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this Agreement or the other
Loan Documents.




          (b) Notwithstanding the other provisions of this Section 8.01, the Borrower and the
Administrative Agent may (but shall have no obligation to) amend or supplement the Loan Documents
without the consent of any Lender: (i) to cure any ambiguity, defect or inconsistency or (ii) to
make any change that would provide any additional rights or benefits to the Lender.




          (c) If, in connection with any proposed amendment, waiver or consent, the consent of all of
the Lenders, or all of the Lenders directly affected thereby, is required pursuant to this
Section 8.01, and any such Lender refuses to consent to such amendment, waiver or consent
as to which the Required Lenders have consented (any such Lender whose consent is not obtained as
described in this Section 8.01 being referred to as a “Non-Consenting Lender”), then, so
long as the Administrative Agent is not a Non-Consenting Lender, at the Borrower’s request and at
the sole cost and expense of the Borrower, the Administrative Agent or an Eligible Assignee shall
be entitled (but shall have no obligation) to purchase from such Non-Consenting Lender, and such
Non-Consenting Lender (by its acceptance of the benefits of the applicable Loan Documents) agrees
that it shall, upon the Administrative Agent’s request, sell and assign to the Administrative Agent
or such Eligible Assignee, all of the Loans and Commitments of such Non-Consenting Lender or
Non-Consenting Lenders for an amount equal to the principal balance of all Loans held by the
Non-Consenting Lender and all accrued interest and fees with respect thereto through the date of
sale; provided that such Eligible Assignee consents to the proposed amendment, waiver or consent.
Each Lender (by its acceptance of the benefits of the Loan Documents) agrees that, if it becomes a
Non-Consenting Lender, it shall execute and deliver to the Administrative Agent an Assignment and
Acceptance to evidence such sale and purchase and shall deliver to the Administrative Agent any
Note (if the assigning Lender’s Loans are evidenced by Notes) subject to such Assignment and
Acceptance; provided, however, that the failure of any Non-Consenting Lender to execute an
Assignment and Acceptance shall not render such sale and purchase (and the corresponding
assignment) ineffective.




          SECTION 8.02. Notices, Etc. (a) All notices and other communications provided for
hereunder shall be either (x) in writing (including telegraphic, telecopy or electronic (including
portable document format (pdf) communication) and mailed, telegraphed, telecopied or delivered or
(y) as and to the extent set forth in Section 8.02(b) and in the proviso to this
Section 8.02(a), in an electronic medium and delivered as set forth in Section
8.02(b), if to the Borrower, at its address at The Schrafft Center, 529 Main Street, Suite 605,
Charlestown, MA 02129, Attention: Chief Executive Officer, Fax: (617) 381-2211 (with a copy sent to
EBG Holdings LLC c/o K Road Power Management, LLC, 330 Madison Avenue, 25th Floor, New
York, NY 10017, Attention: Chief Executive Officer, Fax: (212) 351-0515 and a copy sent to
Robert F. Quaintance Jr. and Paul D. Brusiloff, Debevoise & Plimpton LLP, 919 Third Avenue,




66









 







New
York, New York 10022, Fax: (212) 521-7451 and (212) 521-7015, respectively); if to any Initial
Lender, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the administrative questionnaire
delivered in conjunction with the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Administrative Agent, at its address at 11 Madison Avenue, New York, NY 10010,
Attention: Candace Sorina, Fax: (212) 325-8304, E-mail Address: candace.sorina@credit-suisse.com
or, as to the Borrower or the Administrative Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the Borrower and the
Administrative Agent; provided, however, that materials and information described in Section
8.02(b) shall be delivered to the Administrative Agent in accordance with the provisions
thereof or as otherwise specified to the Borrower by the Administrative Agent. All such notices
and other communications shall, when mailed, telegraphed, telecopied, or e-mailed, be effective
when deposited in the mails, delivered to the telegraph company, transmitted by telecopier or sent
by electronic communication, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VII shall not be
effective until received by the Administrative Agent. Delivery by telecopier of an executed
counterpart of a signature page to any amendment or waiver of any provision of this Agreement or
the Notes shall be effective as delivery of an original executed counterpart thereof.




          (b) The Borrower hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the Administrative
Agent pursuant to the Loan Documents, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other information materials,
but excluding any such communication that (i) relates to a request for a new, or a Conversion of an
existing, Loan (including any election of an interest rate or interest period relating thereto),
(ii) relates to the payment of any principal or other amount due under this Agreement prior to the
scheduled date therefor, (iii) provides notice of any Default or Event of Default under this
Agreement or (iv) is required to be delivered to satisfy any condition precedent to the
effectiveness of this Agreement and/or (all such non-excluded communications being referred to
herein collectively as “Communications”), by transmitting the Communications in an electronic/soft
medium in a format acceptable to the Administrative Agent to an electronic mail address specified
by the Administrative Agent to the Borrower. In addition, the Borrower agrees to continue to
provide the Communications to the Administrative Agent in the manner specified in the Loan
Documents but only to the extent requested by the Administrative Agent. The Borrower further
agrees that the Administrative Agent may make the Communications available to the Lenders by
posting the Communications on IntraLinks or a substantially similar electronic transmission system
(the “Platform”).




          (c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT




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OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO
EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY
LIABILITY TO THE BORROWER, ANY LENDER PARTY OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE
ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT
THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.




          (c) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender
agrees (i) that notice to it (as provided in the next sentence) specifying that the Communications
have been posted to the Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent
in writing (including by electronic communication) from time to time of such Lender’s e-mail
address to which the foregoing notice may be sent by electronic transmission and (ii) that the
foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of
the Administrative Agent or any Lender to give any notice or other communication pursuant to any
Loan Document in any other manner specified in such Loan Document.




          SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the
Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Note
or any other Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.




          SECTION 8.04. Costs and Expenses. (a) Other than with respect to Other Taxes which
are governed solely by Section 2.11, the Borrower agrees to pay on demand (i) all costs and
expenses of the Administrative Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of, or any consent or waiver under, the Loan Documents
(including, without limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of counsel for
the Administrative Agent with respect thereto, with respect to advising the Administrative
Agent as to its rights and responsibilities, or the perfection, protection or preservation of
rights or




68









 







interests, under the Loan Documents, with respect to negotiations with the Borrower or
with other creditors of the Borrower or any of its Subsidiaries arising out of any Default or any
events or circumstances that may give rise to a Default and with respect to presenting claims in or
otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding
involving creditors’ rights generally and any proceeding ancillary thereto) and (ii) all costs and
expenses of the Administrative Agent and each Lender in connection with the enforcement of the Loan
Documents, whether in any action, suit or litigation, or any bankruptcy, insolvency or other
similar proceeding affecting creditors’ rights generally (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent and each Lender with respect
thereto).




          (b) The Borrower agrees to indemnify, defend and save and hold harmless the Administrative
Agent, each Lender and each of their Affiliates and their respective officers, directors,
employees, agents, trustees and advisors (each, an “Indemnified Party”) from and against, and shall
pay on demand, any and all claims, damages, losses, liabilities and related expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i) the actual or proposed use of
the proceeds of the Loans, the Transaction Documents or any of the transactions contemplated
thereby (including, without limitation, the Transaction) or (ii) the actual or alleged presence of
Hazardous Materials on any property of the Borrower or any of its Subsidiaries or any Environmental
Action relating in any way to the Borrower or any of its Subsidiaries, except to the extent such
claim, damage, loss, liability or expense (x) is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or
willful misconduct or (y) in the case of clause (i) above, is a tax. In the case of an
investigation, litigation or other proceeding to which the indemnity in this Section
8.04(b) applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders or creditors, any
Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the Transaction is consummated. The Borrower also agrees not to assert
any claim against the Administrative Agent, any Lender or any of their Affiliates, or any of their
respective officers, directors, employees, agents, trustees and advisors, on any theory of
liability, for special, indirect, consequential or punitive damages arising out of or otherwise
relating to the actual or proposed use of the proceeds of the Loans, the Transaction Documents or
any of the transactions contemplated by the Transaction Documents.




          (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Loan is made by the
Borrower to or for the account of a Lender other than on the last day of the Interest Period for
such Loan as a result of a payment or Conversion pursuant to Section 2.05,
2.08(b)(i) or 2.09(d), acceleration of the maturity of the Loans pursuant to
Section 6.01 or for any other reason, or if the Borrower fails to make any payment or
prepayment of an Loan for which a notice of prepayment has been given or that is otherwise required
to be made, whether pursuant to Section 2.04, 2.05 or Section 6.01 or
otherwise, the Borrower shall, upon demand by
such Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to compensate such




69









 







Lender
for any additional losses, costs or expenses that it may reasonably incur as a result of such
payment or Conversion or such failure to pay or prepay, as the case may be, including, without
limitation, any loss (but excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund
or maintain such Loan.




          (d) If the Borrower fails to pay when due any costs, expenses or other amounts payable by it
under any Loan Document, including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of the Borrower by the Administrative Agent or any
Lender, in its sole discretion.




          (e) Without prejudice to the survival of any other agreement of the Borrower hereunder or
under any other Loan Document, the agreements and obligations of the Borrower contained in this
Section 8.04 shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under any of the other Loan Documents.




          SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the continuance of
any Event of Default and (b) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Administrative Agent to declare the Loans due and payable
pursuant to the provisions of Section 6.01, the Administrative Agent and each Lender and
each of their respective Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other indebtedness at any time
owing by the Administrative Agent, such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the Obligations of the Borrower now or hereafter
existing under the Loan Documents, irrespective of whether the Administrative Agent or such Lender
shall have made any demand under this Agreement and although such Obligations may be unmatured.
The Administrative Agent and each Lender agrees promptly to notify the Borrower after any such
set-off and application; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of the Administrative Agent and each
Lender and their respective Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that the Administrative Agent,
such Lender and their respective Affiliates may have.




          SECTION 8.06. Binding Effect. This Agreement shall become effective when it shall
have been executed by the Borrower and the Administrative Agent and the Administrative Agent shall
have been notified by each Initial Lender that such Initial Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent and each
Lender and their respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior written consent of
each Lender.




          SECTION 8.07. Assignments and Participations. (a) Each Lender may assign to one or
more Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of the Loans owing to it and the Note or Notes
held by it); provided, however, that (i) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved




70









 







Fund
of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement,
the aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to such
assignment (determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $1,000,000 (or such lesser amount as shall be approved
by the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower), provided that simultaneous assignments by two or more Related Funds shall be treated as
one assignment for purposes of the minimum assignment requirement, (ii) each such assignment shall
be to an Eligible Assignee, and to the extent such assignment is to any Eligible Assignee that,
immediately prior to such assignment, was not a Lender, an Affiliate of a Lender or an Approved
Fund, the Administrative Agent shall have consented to such assignment (in each case such consent
not to be unreasonably withheld or delayed), (iii) each such assignment made as a result of a
demand by the Borrower pursuant to Section 8.01 shall be arranged by the Borrower after
consultation with the Administrative Agent and shall be either an assignment of all of the rights
and obligations of the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other such assignments
that together cover all of the rights and obligations of the assigning Lender under this Agreement,
(iv) no Lender shall be obligated to make any such assignment as a result of a demand by the
Borrower pursuant to Section 2.16 or Section 8.01 unless and until such Lender
shall have received one or more payments from either the Borrower or one or more Eligible Assignees
in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances
owing to such Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this Agreement, (v) no such
assignments shall be permitted without the consent of the Administrative Agent until the
Administrative Agent shall have notified the Lender that syndication of the Commitments hereunder
has been completed and (vi) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if
previously agreed with the Administrative Agent, manually), together with (A) any Note or Notes (if
any) subject to such assignment (B) an administrative questionnaire and tax forms, if applicable
and (C) a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole
discretion of the Administrative Agent); provided, however, that only one such fee shall be payable
with respect to simultaneous assignments by or to one or more Related Funds; provided further that
for each such assignment made as a result to a demand by the Borrower pursuant to Section
2.16 or Section 8.01, the Borrower shall pay to the Administrative Agent the applicable
processing and recordation fee.




          (b) Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the
Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its
rights under Sections 2.09, 2.11 and 8.04 to the extent any claim
thereunder
relates to an event arising prior to such assignment) and be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering all of the
remaining




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portion of an assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).




          (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder
and each assignee thereunder confirm to and agree with each other and the other parties thereto and
hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with, any Loan Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the Administrative Agent by
the terms hereof and thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed by it as a Lender.




          (d) The Administrative Agent, acting for this purpose (but only for this purpose) as the agent
of the Borrower, shall maintain at its address referred to in Section 8.02 a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and principal amount of the Loans owing to each Lender from time
to time (the “Register”). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower or the
Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable
prior notice.




          (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee, together with any Note or Notes (if any) subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form
of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower. If requested, in the case of any assignment by a Lender,
within




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10 Business Days after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if
any) an amended and restated Note (which shall be marked “Amended and Restated”) to the account of
such Eligible Assignee in an amount equal to the Commitment assumed by it under the Facility
pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes
prior to such assignment has retained a Commitment hereunder under the Facility, an amended and
restated Note to the account of such assigning Lender in an amount equal to the Commitment retained
by it hereunder. Such amended and restated Note or Notes shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A
hereto.




          (f) Each Lender may sell participations to one or more Persons (other than the Borrower or any
of its Subsidiaries) in or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of the Loans owing to it and the Note or Notes (if
any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lender
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement and (v) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of any Loan Document, or any consent
to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, postpone any date
fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.




          (g) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information received by it from such Lender.




          (h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any
time create a security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Loans owing to it and the Note or Notes (if any) held by it) in
favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.




          (i) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may
create a security interest in all or any portion of the Loans owing to it and any Note or Notes
held by it to the trustee for holders of obligations owed, or securities issued, by
such Fund as security for such obligations or securities; provided that, unless and until such
trustee actually becomes a Lender in compliance with the other provisions of this Section
8.07,




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(i) no such pledge shall release the pledging Lender from any of its obligations under
the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a
Lender under the Loan Documents even though such trustee may have acquired ownership rights with
respect to the pledged interest through foreclosure or otherwise.




          (j) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to
provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any
SPC to fund any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to
make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. Each party hereto hereby agrees that (i) no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement for which a Lender would be
liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or
any other increased costs protection provision) and (iii) the Granting Lender shall for all
purposes, including, without limitation, the approval of any amendment or waiver of any provision
of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior Debt of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without
prior consent of, the Borrower and the Administrative Agent and with the payment of a processing
fee of $500, assign all or any portion of its interest in any Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its funding of Loans to any
rating agency, commercial paper dealer or provider of any surety or guarantee or credit or
liquidity enhancement to such SPC. This subsection (j) may not be amended without the
prior written consent of each Granting Lender, all or any part of whose Loans are being funded by
the SPC at the time of such amendment.




          SECTION 8.08. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Electronic delivery (by telecopier or portable document format (pdf)) of an
executed counterpart of a signature page to this Agreement shall be effective as delivery of an
original executed counterpart of this Agreement.




          SECTION 8.09. Confidentiality. Neither the Administrative Agent nor any Lender shall
disclose any Confidential Information to any Person without the consent of the Borrower, other than
(a) to the Administrative Agent’s or such Lender’s Affiliates and their officers, directors,
employees, agents, trustees and advisors and to actual or prospective Eligible Assignees and
participants, and then only on a confidential basis, (b) as required by any law, rule
or regulation or judicial process, (c) as requested or required by any state, Federal or
foreign authority or examiner (including the National Association of Insurance Commissioners or any




74









 







similar organization or quasi-regulatory authority) regulating such Lender, (d) to any rating
agency when required by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender, (e) in connection with any litigation or proceeding to which the
Administrative Agent or such Lender or any of its Affiliates may be a party or (f) in connection
with the exercise of any right or remedy under this Agreement or any other Loan Document.




          SECTION 8.10. Patriot Act Notice. Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Patriot Act. The Borrower shall, and shall cause each of its
Subsidiaries to, provide such information and take such actions as are reasonably requested by the
Administrative Agent or any Lender in order to assist the Administrative Agent and the Lender in
maintaining compliance with the Patriot Act.




          SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or any of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
any such New York State court or, to the fullest extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or any of the other
Loan Documents in the courts of any jurisdiction.




          (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or any of
the other Loan Documents to which it is a party in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.




          SECTION 8.12. Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the internal laws of the State of New York.




          SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the Administrative Agent
and the Lender irrevocably waives, to the fullest extent permitted by applicable law, all
right to trial by jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to any of the Loan Documents, the Loans or the
actions of




75









 







the Administrative Agent or any Lender in the negotiation, administration, performance
or enforcement thereof.




76









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	BG NEW ENGLAND POWER SERVICES, INC.

as Guarantor

 	 
	 	By:  	/s/
David L. Tohir	 
	 	 	Name:  	David L. Tohir	 
	 	 	Title:  	President	 
	 
	 	EBG HOLDINGS LLC,

as Borrower

 	 
	 	By:  	/s/
David L. Tohir	 
	 	 	Name:  	David L. Tohir	 
	 	 	Title:  	President	 
	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Administrative Agent and as Initial Lender

 	 
	 	By:  	/s/
James Moran	 
	 	 	Name:  	James Moran	 
	 	 	Title:  	Managing Director	 
	 	 	 
	 	By:  	/s/
Nupur Kumar	 
	 	 	Name:  	Nupur Kumar	 
	 	 	Title:  	Associate	 
	 
	 	Initial Lenders



GOLDMAN SACHS CREDIT PARTNERS L.P.

 	 
	 	By:  	/s/
Guillermo Nalle	 
	 	 	Name:  	Guillermo Nalle	 
	 	 	Title:  	Managing Director	 
	 




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